Copper Craft Plumbing

354 NLRB No. 108 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Copper Craft Plumbing, Inc., and Kansas City Plumbing, Inc., a single employer and their alter egos KC Commercial Plumbing, Inc., and Studio 36 LLC and Donovan Shafer and Steven R. Cox. Cases 17–CA–24227 and 17–CA–24291 November 25, 2009 DECISION AND ORDER AND ORDER REMANDING BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On April 30, 2009, Administrative Law Judge Marga- ret G. Brakebusch issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board1 has considered the judge’s decision and the record in light of the excep- tions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent con- sistent with this Decision and Order and Order Remand- ing. 1. The judge found that Respondents Copper Craft Plumbing, Inc. (Copper Craft Plumbing), Kansas City Plumbing, Inc. (Kansas City Plumbing), and KC Com- mercial Plumbing, Inc. (KC Commercial Plumbing) are alter egos and a single employer and, as such, violated Section 8(a)(1) of the Act by threatening employees with unspecified reprisals and by discharging employee Donovan Shafer because of his protected concerted ac- tivities. The judge further found that these Respondents violated Section 8(a)(3), (4), and (1) of the Act by deny- ing employees the opportunity to drive work vans home 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Narricot Industries, L.P. v. NLRB,___F.3d___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted ___S.Ct.___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377). at the end of the workday and by laying off employees on September 17, 2008, in order to discourage them from the exercise of their Section 7 rights. There are no ex- ceptions to these findings. Accordingly, we shall enter an Order against these Respondents with respect to these findings. 2. The judge additionally found that Respondent Stu- dio 36 LLC (Studio 36) is an alter ego of the other named Respondents. Specifically, the judge found Studio 36 liable as an alter ego of the other entities under the “piercing the corporate veil” analysis set forth in White Oak Coal, 318 NLRB 732 (1995) , enfd. mem. 81 F.3d 150 (4th Cir. 1996).2 Contrary to the judge, we find that this analysis is not applicable here. The Board’s test in White Oak Coal is appropriate for identifying those cases where “a shareholder has so dis- regarded the separate identity of the corporation that it is appropriate to make his or her personal assets available to remedy the unfair labor practices of the corporation.” Flat Dog Productions, 347 NLRB 1180, 1183 (2006). Where, as here, the General Counsel only seeks a finding that one legal entity is the alter ego of another, that analysis is not appropriate. Rather, the Board examines whether the entities have substantially identical man- agement, business purposes, operations, equipment, cus- tomers, supervision, and ownership. See, e.g., Cross- roads Electric, 343 NLRB 1502, 1506 (2004), enfd. 178 Fed. Appx. 528 (6th Cir. 2006); citing Advance Electric, 268 NLRB 1001, 1002 (1984), enfd. as modified 748 F.2d 1001 (5th Cir. 1984), cert. denied 470 U.S. 1085 (1985). Accordingly, we shall sever the allegation con- cerning Studio 36’s alleged alter ego status and remand it to the judge for the purpose of analyzing the allegation under the appropriate standard. 3. The judge’s conclusions of law state that Studio 36 is also a single employer with Respondents Copper Craft Plumbing, Kansas City Plumbing, and KC Commercial Plumbing. However, the judge neither discussed nor ana- lyzed the single-employer allegation as to Studio 36. Accordingly, we shall also sever and remand this allega- tion to the judge for clarification as to (a) whether the judge intended to find Studio 36 to be a single employer with the other entities, and (b) if so, to explain this find- ing under the following appropriate factors for determin- ing single employer status: (1) interrelation of opera- 2 In White Oak Coal, supra, 318 NLRB at 735, the Board found that the corporate veil may be pierced and personal liability assessed when: (1) there is such unity of interest and lack of respect given to the sepa- rate identity of the corporation by its shareholders, that the personalities and assets of the corporation and the individuals are indistinct, and (2) adherence to the corporate form would sanction a fraud, promote injus- tice, or lead to an evasion of legal obligations. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 tions; (2) common management; (3) centralized control of labor relations; and (4) common ownership or finan- cial control. See Shane Steel Processing, 353 NLRB No. 58, slip op. at 1 (2008); Paint America Services, 353 NLRB No. 100, slip op. at 1 (2009). ORDER The National Labor Relations Board orders that the Respondents, Copper Craft Plumbing, Inc., Kansas City Plumbing, Inc., and KC Commercial Plumbing, Inc., as alter egos and a single employer, Kansas City, Missouri, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with unspecified reprisals because they engaged in union or other protected con- certed activities. (b) Discharging employees for engaging in protected concerted activities. (c) Laying off employees in order to discourage em- ployees from filing charges with the Board and from engaging in other protected concerted activities. (d) Denying employees the opportunity to drive work vans home at the end of the workday in order to discour- age employees from filing charges with the Board and from engaging in other protected concerted activities. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Donovan Shafer, Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Casti- llo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other em- ployees included in the September 17, 2008 layoff, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights and privileges previously enjoyed. (b) Make Donovan Shafer whole, with interest as set forth in the remedy section of the judge’s decision, for any loss of wages and benefits that he suffered as a result of his unlawful discharge on July 8, 2008. (c) Make Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Ger- ardo Valenzuela, Gerardo Valenzuela Sr., Roberto Be- cerra, Justin Beauchamp, and any other employees in- cluded in the September 17, 2008 layoff, whole, with interest as set forth in the remedy section of the judge’s decision, for any loss of wages and benefits that they suffered as a result of their unlawful layoff. (d) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charge of Donovan Shafer, 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. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs of Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other employees included in the September 17, 2008 layoff, and within 3 days thereafter notify them in writing that this has been done and that the layoffs will not be used against them in any way. (f) Within 14 days from the date of this Order, rescind the August 22, 2008 notice to employees denying them the opportunity to drive company vehicles to their homes. (g) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (h) Within 14 days after service by the Region, post at its Kansas City, Missouri facility copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Within 14 days after service by the Region, mail copies of the attached notice marked “Appendix.” Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all employees employed by the Re- spondent at any time since July 8, 2008. (j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 3 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 Judg- ment of the United State Court of Appeals Enforcing an Order of the National Labor Relations Board.” COOPER CRAFT PLUMBING, INC. 3 testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the allegations concerning (1) whether Respondent Studio 36 is an alter ego of Re- spondents Copper Craft Plumbing, Kansas City Plumb- ing, and KC Commercial Plumbing, and (2) whether Re- spondent Studio 36 is a single employer with Respon- dents Copper Craft Plumbing, Kansas City Plumbing, and KC Commercial Plumbing, are severed and re- manded to Administrative Law Judge Margaret G. Brakebusch for further action consistent with this Deci- sion and Order. IT IS FURTHER ORDERED that the judge shall prepare a supplemental decision setting forth credibility resolu- tions, findings of fact, conclusions of law, and a recom- mended Order, as appropriate on remand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. November 25, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten you with unspecified reprisals because you engage in union or other protected concerted activities. WE WILL NOT discharge you for engaging in protected concerted activities. WE WILL NOT lay you off in order to discourage you from filing charges with the Board and from engaging in other protected concerted activities. WE WILL NOT deny you the opportunity to drive work vans home at the end of the workday in order to discour- age you from filing charges with the Board and from engaging in other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed above. WE WILL, within 14 days from the date of the Board’s Order, offer Donovan Shafer, Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Is- mael Castillo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other employees included in the September 17, 2008 layoff, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Donovan Shafer whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL make Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Casti- llo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other em- ployees included in the September 17, 2008 layoff whole for any loss of earnings and other benefits resulting from their discriminatory layoff, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Donovan Shafer, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in anyway. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoffs of Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Ger- ardo Valenzuela, Gerardo Valenzuela, Sr., Roberto Be- cerra, Justin Beauchamp, and any other employees in- cluded in the September 17, 2008 layoff, and WE WILL within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. WE WILL, within 14 days from the date of the Board’s Order, rescind our August 22, 2008 notice denying you DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 the opportunity to drive company vehicles to your homes. COPPER CRAFT PLUMBING INC., KANSAS CITY PLUMBING, INC., A SINGLE EMPLOYER AND THEIR ALTER EGO KC COMMERCIAL PLUMB- ING, INC. Mary G. Taves, Esq., for the General Counsel. Walter R. Roher, Esq., for the Respondent. DECISION STATEMENT OF THE CASE MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in Overland Park, Kansas, on January 13 and 14, 2009. The charge in Case 17–CA–24227 was filed by Donovan Shafer (Shafer) on July 14, 2008,1 and amended on November 24, 2008. The charge in Case 17–CA–24291 was filed by Steven R. Cox (Cox) on September 11, 2008, and amended on November 21, 2008. On November 26, 2008, the Regional Director for Region 17 of the National Labor Relations Board (the Board) issued an order consolidating cases, consolidated complaint and notice of hearing based upon the allegations contained in Cases 17–CA– 24227 and 17–CA–24291. The consolidated complaint alleges that Copper Craft Plumbing, Inc. (Copper Craft) and Kansas City Plumbing, Inc. (Kansas City Plumbing) constitute a single- integrated business enterprise and a single employer within the meaning of the Act. The consolidated complaint further alleges that on or about August 22 and 25, 2008, Studio 36 LLC (Stu- dio 36) and KC Commercial Plumbing, Inc. (KC Commercial) were established by Copper Craft and Kansas City Plumbing as a disguised continuation of Copper Craft and Kansas City Plumbing for the purpose of evading responsibilities under the National Labor Relations Act (the Act). The consolidated complaint additionally alleges that Copper Craft, Kansas City Plumbing, KC Commercial, and Studio 36 are, and have been at all material times, alter egos and a single employer within the meaning of the Act. The consolidated complaint further alleges that the four Re- spondent entities described above, and collectively referred to herein as Respondent; terminated Shafer on July 8, 2008, be- cause of his protected concerted activities. The consolidated complaint also alleges that Respondent laid off Cox and nine other employees on or about September 17, 2008, because Shafer and Cox filed charges with the Board and because of their activities in support of the Union. The consolidated com- plaint additionally alleges that on or about September 1, 2008, Respondent required Cox and seven other employees to begin parking work vans at the Respondent’s facilities rather than permitting them to drive the vans home at the end of the work- day. Finally, the consolidated complaint alleges that in or about mid-July 2008, Respondent, acting through Tim Net- tekoven, threatened employees with unspecified reprisals be- cause they engaged in union or other protected activities. Re- spondent filed a timely answer, denying the allegations of vio- 1 All dates are in 2008, unless otherwise indicated. lative conduct. Respondent admits, however, that Copper Craft and Kansas City Plumbing have been affiliated business enter- prises with common officers, ownership, directors, manage- ment, and supervision; have formulated and administered a common labor policy; have shared common premises and fa- cilities; have provided services for, and made sales to each other; have interchanged personnel with each other; and have held themselves out to the public as a single-integrated business enterprise. Respondent admits that Copper Craft and Kansas City Plumbing constitute a single-integrated business enterprise and a single employer within the meaning of the Act. In its answer, Respondent admits that Copper Craft, Kansas City Plumbing, KC Commercial, and Studio 36 have had substan- tially identical management, business purposes, operations, equipment, customers, and supervision, as well as ownership. Respondent denies, however, that Studio 36 is engaged in the business of plumbing and asserts that it was created solely to own a building that serves as a residence and a warehouse for Copper Craft, Kansas City Plumbing, and KC Commercial. On the entire record, including my observations of the de- meanor of the witness, and after considering the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, with an office and place of busi- ness in Kansas City, Missouri, has been engaged in the business of residential and commercial plumbing. During the past 12 months, Respondent performed services valued in excess of $50,000 directly for customers located outside the State of Mis- souri. Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find2 that Local 8 for the Plumbers and Gasfitters (the Union) has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Origin of the business enterprise Respondent’s business operation in residential plumbing be- gan in 1995. On September 23, 2004, Copper Craft and Kansas City Plumbing were incorporated in the State of Missouri by Timothy Nettekoven and Christian M. Ismert to own, manage, and operate as a commercial and residential plumbing contrac- tor in the greater Kansas City geographical area. In 2007, Timothy J. Nettekoven (Nettekoven) and his wife Cami L. Net- tekoven purchased Christian M. Ismert’s ownership interest in Copper Craft Plumbing and Kansas City Plumbing and became the sole shareholders of both entities. Prior to October 2008, 2 Sec. 102.20 of the Board’s Rules and Regulations provides that any allegation not specifically denied or explained in an answer filed shall be deemed to be admitted to be true unless good cause to the contrary is shown or the respondent states that he is without knowledge. Finding neither exception to apply, the complaint allegation concerning the status of Local 8, Plumbers and Gasfitters (the Union) is deemed to be admitted. COOPER CRAFT PLUMBING, INC. 5 both Copper Craft and Kansas City Plumbing maintained a place of business at 2930 Cherry, Kansas, City, Missouri. In October 2008, Copper Craft and Kansas City Plumbing relo- cated to 3600 Troost Avenue, in Kansas City, Missouri. 2. Interrelationship between Copper Craft and Kansas City Plumbing The parties stipulate that Copper Craft and Kansas City Plumbing maintain combined business and accounting records, and while maintaining separate bank accounts use such ac- counts in the combined operation of both businesses. In the operation of their business, Copper Craft and Kansas City Plumbing utilized the same equipment, tools, office supplies, vehicles, and employees. The bulk of the equipment used by both companies was owned by Copper Craft and the employ- ees’ salaries were paid by Copper Craft. Copper Craft and Kansas City Plumbing have also maintained the same insurance carriers and policies to cover their business operations. In the operation of their businesses, Copper Craft and Kansas City Plumbing performed services for the same customers and used the same plumbing suppliers. Beginning in mid-2006, most of the bids for new business were made under Kansas City Plumb- ing. It was Nettekoven’s intention that Kansas City Plumbing would eventually take over all the work of Copper Craft. Based upon undisputed evidence and the stipulations of the parties, I find that Copper Craft and Kansas City Plumbing constitute a single-integrated business enterprise and a single employer within the meaning of the Act. 3. Respondent’s work force In the summer of 2008, Respondent employed approximately 11 field employees, including plumbers and plumbers’ helpers. Donovan Shafer was employed as a lead plumber and had worked for Respondent since October 2006. He had been a licensed plumber since 1991 and had experience in commercial, residential, and underground plumbing. Steve Cox and Jeff Raley also worked for Respondent as lead plumbers. The par- ties stipulated that Shafer, Raley, and Cox were not supervisors within the meaning of Section 2(11) of the Act. 4. Respondent’s supervisors and agents Nettekoven is president for both Copper Craft and Kansas City Plumbing. Cami Nettekoven is secretary, a member of the board of directors, and office manager for both Cooper Craft and Kansas City Plumbing. Cami Nettekoven is also president, secretary, and a member of the board of directors for KC Commercial. The parties stipulated that Nettekoven and Cami Nettekoven continued to manage and supervise the business of KC Commercial just as they managed the business of Copper Craft and Kansas City Plumbing. Brian Lee served as manager of operations for Respondent and is an admitted supervisor. James Newstrom held the position as master plumber and is an admitted agent of Respondent. Respondent continued to utilize Newstrom as a plumber after the September 17, 2008 layoff. There is no record evidence and no assertions by any party that there were any other supervisors other than Lee and the Net- tekoven’s. B. Discharge of Donovan Shafer The consolidated complaint alleges that Respondent termi- nated Donovan Shafer on July 8, 2008, because he and others engaged in protected concerted activity as well as activities on behalf of the Union. Respondent submits that Shafer was not engaged in any protected activities and that his termination was for reasons other than any protected activity. 1. Employees’ lunch with the union representative On May 12, 2008, Shafer and Cox were working on the same jobsite when they were visited by Jim Stout; an organizer with Local 8 of the Plumbers and Gasfitters Union (the Union). Cox knew Stout from his work with a previous company. As Stout arrived at the jobsite shortly before their lunchbreak, Shafer and Cox joined Stout for lunch. When they returned to the jobsite in Stout’s vehicle, Nettekoven was present on the jobsite deliv- ering materials. Although Shafer and Cox immediately re- turned to work, Stout remained to talk with Nettekoven. It is undisputed that Stout told Nettekoven that he had taken Shafer and Cox to lunch and that he knew them because they were previously in the Union. Stout additionally asked Nettekoven if there would be a time when he would be interested in becoming a union contractor. Nettekoven recalled that his only response to Stout was to say “maybe.” Nettekoven testified however, that at the time of his conversation with Stout, he did not be- lieve that there was any good reason for his company to be- come part of the Union. Following the lunch meeting with Stout, Shafer spoke with fellow employee Javier Mendoza about the potential for the employees becoming unionized. Shafer recalled that he may have given Mendoza some paperwork showing the Union’s first-year apprentice scale and the Union’s benefit package that he had received from Stout during their lunch meeting. Shafer testified that he shared this information with Mendoza in order that Mendoza could convey it to the Spanish-speaking employ- ees working for Respondent. Shafer recalled that within the next day or two after his lunch with Stout, he again spoke with Stout. During the conversation, Stout explained that when he asked Nettekoven about becom- ing a union contractor, Nettekoven stated that he didn’t think that he had any plumbers that were worth union scale. Shafer checked with Cox and discovered that Stout also repeated this same comment by Nettekoven to Cox as well. Shafer and Cox discussed this comment and agreed that they were worth more than they were currently being paid. Shafer and Cox discussed this concern and other concerns with fellow employee Jeff Raley. During these conversations, they discussed their con- cerns about their inability to get the necessary materials and blueprints for their jobs in a timely fashion and their frustration with the length of the commute time to get to their respective worksites. They also discussed vacation and holiday pay, as well as Cox’s need for the use of a company van. Shafer, Cox, and Raley decided that they needed to meet with Nettekoven to discuss these various concerns. Raley set up a meeting for the three of them with Nettekoven. In setting up the meeting, Raley assured Nettekoven that the meeting was not going to be all about wages; however, he expected wages to be a part of the discussion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 2. The employees’ meeting with Nettekoven Toward the end of May 2008, Nettekoven met with Shafer, Cox, and Raley at a restaurant near one of the worksites. Su- pervisor Bryan Lee (Lee) also attended the meeting. The plumbers brought a list of the issues that they wanted to discuss with Nettekoven and Cox took notes during the meeting. The employees told Nettekoven and Lee that they believed that the lead plumbers should all be paid the same wages. The employ- ees further explained that since they were “running” their re- spective jobs, their wages should be $31 to $32 an hour. In response to their comments about wages, Lee discussed with them his understanding of the existing union scale for wages. The employees also voiced their desire to have more holidays and paid vacation. Although Nettekoven and Lee made no promise to increase employee wages, they discussed the possi- bility of a profit-sharing plan for the employees. Lee recalled that during the meeting he told the employees that the cash flow had been somewhat better and that the Company had been able to pay off some of its debt. The employees additionally explained to Nettekoven and Lee their frustration with working without access to a full set of prints for their respective projects. Nettekoven and Lee voiced their understanding of this issue and assured the employees that they would have access to the full set of blueprints. Cox testi- fied that the employees also mentioned their concerns about existing language barriers for crews composed of both Spanish- speaking and English-speaking employees. When the employ- ees voiced concerns about the distances they were driving to the jobsites, Nettekoven stated that he would try to assign them work closer to their homes. In his testimony, Lee confirmed that during the meeting, the employees talked about difficulties in getting materials as well as the unavailability of blueprints that hindered their ability to make work decisions. He recalled that they talked about the use of vans and about their wages. Lee acknowledged in his testimony that he raised union scale with the employees while discussing wages. He recalled that Cox had mentioned that the Union had just negotiated new contract wages. Lee testified that about a week after he and Nettekoven met with the em- ployees, he and Nettekoven discussed their suspicion that the impetus for the meeting may have been the employees’ lunch with the union organizer. Cox testified that approximately 10 days after the meeting, Nettekoven told him that he would get the use of a van to drive to the worksites and that he would get a $2 an hour raise. Raley contacted Nettekoven twice after the meeting to ask whether he was going to receive an increase in his wages. On one occa- sion, Nettekoven told him that he would have to wait until his anniversary date and on another occasion; he told Raley that he had not had an opportunity to discuss the matter with his wife. During a later conversation with Nettekoven, Shafer asked Nettekoven if he had spoken with his wife about the raises. Nettekoven told him that none of the employees were going to get wage increases; however, he would implement a profit- sharing plan. Although Nettekoven told both Shafer and Cox that employees would receive profit sharing, the plan was never implemented. 3. The events of July 7, 2008 Shafer testified that although Nettekoven had told him that he would be assigned to jobs closer to his home, he never re- ceived3 those assignments. The commute to his assigned jobs required his driving as much as 1 hour and 20 minutes each way. Shafer’s normal starting time for work was 7 a.m. Be- cause the cellular telephones used by the employees have a GPS tracking component, the employees were able to clock in when they reached their jobsite by using their telephones. Shafer left for his assigned job on July 7, 2008, at approxi- mately 6 a.m. After approximately 45 minutes into his drive, he received a telephone call from Nettekoven. During the tele- phone conversation, Nettekoven discussed what he wanted accomplished on the job that day and the manpower that he was sending to the job to assist Shafer. The conversation lasted for approximately 10 to 15 minutes. Although Shafer was still approximately 15 minutes away from the jobsite, he clocked in at 7 a.m. Nettekoven did not dispute Shafer’s testimony about the telephone call or about the length of time that they spoke during Shafer’s drive to the worksite. On the same day, Cox reported to the Sam’s Club carwash jobsite and clocked in when he arrived at the site. After arriv- ing at the site, however, he learned from Nettekoven that he was to report to the Valvoline site. Later that same day, Cox received a telephone call from a new office employee whose first name was identified as Lisa. She told him that he had clocked in early and that she was going to dock his pay. Dur- ing the same day, Shafer also received a telephone call from Lisa. She told him that because he had clocked in 19 minutes before he actually arrived at the worksite, the time would be deducted from his pay. When Shafer and Cox spoke with each other during the day, they discovered that they had both been told that their pay would be deducted because of the time that they clocked in. Shafer and Cox agreed that they needed to meet with Net- tekoven to discuss the deduction in pay. When Shafer spoke with Nettekoven on July 7 to request a meeting, Nettekoven initially told Shafer that he was too busy. Shafer responded by asking if they could meet within the next 24 hours. Shafer testified that he did so because Nettekoven had proven “pretty good about putting meetings off.” Although Shafer detected some frustration or exasperation in Nettekoven’s voice, Net- tekoven agreed to meet with Shafer within 24 hours. Net- tekoven admits that he was aware that both Shafer and Cox wanted to meet with him over the clocking in issue and their pay being docked. 4. The events of July 8, 2008 When Cox completed the work he was doing on the Val- voline job on July 7, Nettekoven told him to report to the Noo- dles and Company jobsite. Nettekoven told him to continue to work there until either he (Nettekoven) or the general contrac- tor on the carwash site called him to return to work on the car- wash. On July 8, 2008, Cox returned to the Noodles and Com- 3 Cox confirmed that following the meeting with Nettekoven, he continued to commute to his jobsite for over an hour without any com- pensation. COOPER CRAFT PLUMBING, INC. 7 pany site; the site where Shafer was also working. During the morning of July 8, Shafer received a telephone call from Net- tekoven. When Nettekoven asked Shafer where Cox was work- ing, Shafer confirmed that Cox was present at his same jobsite. Shafer then took the opportunity to inquire of Nettekoven what time of the day that he wanted to meet with Shafer and Cox. Shafer testified that Nettekoven replied: “I can’t deal with that now. I need Steve at that fucking carwash now.” Shafer did not recall that he had heard Nettekoven use profanity with him previously. Because Nettekoven and Shafer were speaking on a two-way phone, Cox confirmed Nettekoven’s profanity and his directive to Shafer for him (Cox) to return to the carwash immediately. When Shafer again asked Nettekoven if he were going to come to the worksite for the scheduled meeting, Net- tekoven replied that he had 24 hours until he had to meet with the employees. Cox described Nettekoven’s tone of voice with Shafer as agitated. Nettekoven testified that on July 8, 2008, he believed that Shafer had ordered Cox to come to the Noodles and Company jobsite. Although Nettekoven admitted that he had no inde- pendent knowledge that Shafer was responsible for Cox being at the Noodles and Company jobsite, he asserted that there would have been no other reason for Cox to have been there. Shafer testified that he did not have the authority to direct where employees worked and he denied that he had ordered Cox to be at his same jobsite. Cox also testified that he re- ported to the Noodles and Company jobsite because of his pre- vious day’s instruction and not because Shafer told him to work in that site. Cox waited until 7 a.m. on July 8, 2008, and then telephoned Nettekoven. Cox described Nettekoven as “nice” to him and noted that Nettekoven’s tone of voice had changed dramatically from the earlier tone used with Shafer. Nettekoven simply explained the circumstances that necessitated his going back to the carwash earlier than had been expected. Cox also explained to Nettekoven that he had reported to the Noodles and Com- pany worksite because he had been told to work there until notice from either Nettekoven or the general contractor. Dur- ing his testimony, Nettekoven did not rebut Cox’s testimony that he (Cox) had been told to work at Noodles and Company until notified to return to the carwash site. Later in the morning, Nettekoven came to Shafer’s jobsite to deliver a trailer. Nettekoven acknowledged, however, that an additional reason for his going to the Noodles and Company jobsite was to meet with Shafer. When Shafer saw Nettekoven, he approached Nettekoven and asked if they were going to have the meeting about the disputed time. Nettekoven replied that he did not have time to do so. Shafer asked: “When are we going to have the meeting?” Nettekoven only responded that the meeting would be when he returned and then he left the jobsite. Nettekoven testified that when Shafer approached him, his manner was “belligerent” and “pushy.” Nettekoven acknowl- edged, however, that Shafer did not curse him. Nettekoven further admitted that when he told Shafer that he didn’t have time to meet with him, Shafer went back to work without fur- ther comment. Shafer recalled that while he had been frustrated when speaking with Nettekoven, he had not yelled or threat- ened Nettekoven. He denied that he approached Nettekoven in a threatening manner or that he ever pointed his finger at Net- tekoven during the conversation. Nettekoven testified that he had wanted to fire Shafer for about a year, however, he “didn’t have the pieces in place to make it happen” until the July 8, 2008 conversation. Justin Beauchamp was working at the Noodles and Company jobsite on July 8, 2008, and was aware of the conversation be- tween Nettekoven and Shafer. Beauchamp asserted that while he did not hear what Shafer said to Nettekoven, he recalled Shafer’s tone as “rude.” Beauchamp went on to explain that by “rude,” he meant that Shafer’s tone of voice was elevated, al- though not screaming. Beauchamp further explained that he was actually working on a trailer and he did not physically observe Nettekoven and Shafer when they spoke. He esti- mated, however, that they were approximately 4 to 5 feet away from each other and about 4 to 5 feet away from him when they spoke. In describing Nettekoven’s response, Beauchamp testi- fied: “I just heard him say that he can’t deal with this right now and he has to go.” Beauchamp described Nettekoven’s tone of voice as normal. At that point, Beauchamp returned to work inside the building. Javier Mendoza was also working at the Noodles and Com- pany jobsite on July 8. He recalled that Shafer approached Nettekoven and told him that they needed to talk. Nettekoven told him that he didn’t have time and that he would talk with Shafer when he returned from dumping some rock with Men- doza. Mendoza recalled that Shafer had simply said, “Okay,” and walked back into the building. Mendoza recalled that while Shafer appeared frustrated and upset, he did not scream or curse Nettekoven. Shafer and an apprentice were working on a bathroom group across from the front door of the building being constructed when Nettekoven later returned to the jobsite that afternoon. Nettekoven walked over to Shafer and stated: “We can have that meeting now. This isn’t going to take long.” Then Net- tekoven asked Shafer for his keys to the company van, his company phone, and for his company gas credit card. Realiz- ing that he had been fired, Shafer told Nettekoven that he would need to retrieve his tools. He then went to the two ap- prentices with whom he was working and told them that it had been nice to work with them. Nettekoven directed him to also take his personal tools from the company van. Because Shafer no longer had access to drive the company van, Nettekoven ultimately decided that he would drive Shafer home. Shafer recalled that there was very little conversation between them during the 80-minute drive home. 5. Conclusions concerning Shafer’s discharge Section 7 of the Act protects the right of employees to en- gage in concerted activities for their mutual aid or protection and Section 8(a)(1) of the Act prohibits employers from inter- fering, restraining, or coercing employees in the exercise of that right.4 In its decision in Meyers Industries, 268 NLRB 493 (1984), the Board found that employee activity is concerted when it is “engaged in, with, or on the authority of other em- ployees.” The employer is found to violate the Act if, having 4 29 U.S.C. §§ 157–158. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 knowledge of an employee’s concerted activity, it takes adverse employment action that is “motivated by the employee’s pro- tected concerted activity.” Id. at 497. In a later decision, the Board additionally clarified that “concerted activities” pro- tected by Section 7 are those “engaged in with or on the author- ity of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries II, 281 NLRB 882 (1986). In its brief, Respondent asserts that on July 8, 2008, Shafer “confronted his supervisor, Tim Nettekoven, at a work site during work hours and demanded an immediate meeting to discuss the fact that he was not going to be paid for clocking in early that morning5—approximately 19 minutes prior to arriv- ing at his designated job site.” Respondent submits that in that instance, Shafer pursued his individual complaint action on his own behalf. Respondent further argues that “the fact that two individual employees decided to try to speak with Nettekoven about their individual issues at a common time should not be construed as concerted activity.” Despite Respondent’s argu- ment that Shafer and Cox were simultaneously pursuing indi- vidual interests, it is apparent that Shafer’s activities were pro- tected inasmuch as his request to talk with Nettekoven involved issues that directly effected terms and conditions of employ- ment for both he and Cox. See Senior Citizens Coordinating Council of Riverbay Community Inc., 330 NLRB 1100 fn. 18 (2000). Respondent also argues that even if the activity of Cox and Shafer on July 8, 2008, could be classified as concerted, the argument for protection fails because counsel for the General Counsel has failed to show that Nettekoven was aware that Shafer and Cox were engaged in concerted activity. Counsel for the General Counsel submits, however, that in the 3 months prior to his termination, Shafer engaged in a number of activi- ties that constituted protected concerted activity and the record supports her assertion. There is no dispute that Nettekoven knew about Shafer’s lunch with the union representative in mid-May. Lee even admitted that he and Nettekoven had dis- cussed the possibility that the meeting with the union represen- tative had been the impetus for the May meeting requested by the employees. Lee admitted that there had been a discussion of union wages and the most recent union contract during the meeting with the employees. Respondent does not deny that during the meeting, the employees discussed their concerns about their wages, benefits, and working conditions. The em- ployees specifically voiced their concerns about not having the necessary materials and blue prints to do their jobs adequately. They also complained about the time required for them to commute to their respective worksites. Thus, as of July 2008, Nettekoven was not only aware of Shafer’s link to the Union, but also of Shafer’s interest in improving wages, benefits, and working conditions for Respondent’s employees. Nettekoven admitted that Shafer told him on July 7, 2008, that both he and Cox wanted to meet with him and Nettekoven further admitted that he knew that the purpose of the meeting was to discuss the clocking in issue. Accordingly, Nettekoven was aware that 5 The record actually reflects, however, that Shafer’s clocking in early occurred the previous day. Shafer wanted to speak with him about an issue affecting wages for both he and Cox. Thus, the record evidence establishes that Shafer was en- gaged in concerted protected activity and that Respondent was aware of his protected activity. As the Board pointed out in its decision in Noble Metal Processing, Inc., 346 NLRB 795, 795 and fn. 2 (2006), the analysis for determining whether an em- ployer has unlawfully disciplined an employee for conduct that is part of the res gestae of protected concerted activity is con- trary to a Wright Line6 analysis. Quoting from its earlier decision in Stanford Hotel, 344 NLRB 558 (2005), the Board in Noble Metal Processing, supra, explained that “when an employee is disciplined for conduct that is part of the res gestae of protected concerted activities, the pertinent question is whether the conduct is sufficiently egregious to remove it from the protection of the Act.” Noble Metal Processing, supra at 795. Thus, an employer violates the Act by discharging an employee engaged in the protected con- certed activity of voicing a complaint about his or her employ- ment terms, unless, in the course of that protest, the employee engages in opprobrious conduct, costing him the Act’s protec- tion. Atlantic Steel, 245 NLRB 814, 816–17 (1979). In assess- ing the conduct, the Board considers four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the out- burst was, in any way, provoked by the employer’s unfair labor practices. Id. at 816. There is no dispute that the conversation between Net- tekoven and Shafer occurred at the Noodles and Company worksite and in the presence of two other employees. Neither employee testified that Shafer screamed, yelled, used threaten- ing gestures, or threatened Nettekoven in any way. Javier Mendoza confirmed that when Nettekoven declined to talk with Shafer, Shafer simply responded, “okay,” and returned to work. Beauchamp only overheard Nettekoven’s comments and did not hear what Shafer said in the conversation. The evidence indicates that the exchange between Shafer and Nettekoven was extremely short and resulted in no disruption of the work proc- ess for any employee. Respondent argues that despite the company rule requiring employees to clock in upon their arrival at their jobsite, Shafer “unilaterally determined that his pay should begin at an earlier time of day.” Respondent further argues that there is no evi- dence that Shafer was pursuing the issue of whether one may clock in early if engaged in a phone conversation with a super- visor on behalf of any fellow employees.” While it is apparent 6 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st. Cir. 1981), cert. denied 455 U.S. 989 (1982), is based on the legal principle that an employer’s unlawful motivation must be established as a precondition to finding a violation of 8(a)(3) of the Act. American Gardens Management Co., 338 NLRB 644, 645 (2002). The Wright Line analysis requires the General Counsel to make an initial showing sufficient to support the inference that the employee’s protected activity was a motivating factor in the employer’s decision to discipline an employee. Once the General Counsel has made that showing, the bur- den shifts to the employer to demonstrate that the same action would have taken placed even in the absence of the protected activity. Id. at 645. COOPER CRAFT PLUMBING, INC. 9 that Shafer did not have the opportunity to detail his concerns to Nettekoven when he initially requested the meeting, Net- tekoven admits that he was aware that Cox and Shafer wanted to talk with him about an issue involving their clocking in on July 7, 2008. The reasonableness of Shafer’s belief about the docking of pay for his early clock in and the validity of the complaint are irrelevant in this circumstance. Additionally, there is no dispute that Shafer, Cox, and Raley specifically discussed with Nettekoven and Lee their concerns about their long commutes to their worksites. It is sufficient that Shafer and Cox believed that they had a grievance and wanted to speak with Nettekoven and it is reasonable that their requested meet- ing was also a continuation of their protected concerted activity that began in May 2008. See Dayton Typographical Service, Inc., 778 F.2d 1188, 1191–1192 (6th Cir. 1985). The third step in the Atlantic Steel analysis considers whether Shafer’s actions removed him from the protections of the Act. The Board has long recognized that the protections afforded by Section 7 of the Act would be meaningless without taking into account the realities of industrial life and the recog- nition that disputes over wages, hours, and working conditions are “among the disputes that most likely engender ill feelings and strong responses.” United Parcel Service, 353 NLRB No. 39, slip op. at 16, (2008); Consumers Power Co., 282 NLRB 130, 132 (1986). In assessing whether employees lose the pro- tection of the act, the Board draws a line between cases where employees engaging in concerted activities “exceed the bounds of lawful conduct in a moment of animal exuberance or in a manner not motivated by improper motives and those flagrant cases in which the conduct is so violent or of such character as to render the employee unfit for further service.” Allied Avia- tion Fueling of Dallas, 347 NLRB 248, 256 (2006), enfd. 490 F.3d 374 (5th Cir. 2007); Prescott Industrial Products Co., 205 NLRB 51, 51–52 (1973). It has been noted that employee complaints are sometimes made under conditions that can best be described as “the heat of battle.” See NLRB v. Ben Pekin Corp., 452 F.2d 205, 207 (7th Cir. 1971). Nettekoven described Shafer’s manner as belligerent and abusive. Nettekoven asserted that Shafer told him: “I want to meet with you now!” and did so “right in front of all my guys.” Nettekoven went on to testify: “And—no one talks to me like that, and he has talked to me like that in the past.” Nettekoven did not assert that Shafer yelled, threatened, or even used any profanity during the brief exchange. Nettekoven simply testi- fied that he terminated Shafer because Shafer was an “asshole” and the incident on July 8, 2008, was the straw that broke the camel’s back. When asked to identify Shafer’s other improper conduct, Nettekoven initially responded that one of the factors that he considered was Shafer’s moving Cox to the Noodles and Company jobsite. He acknowledged, however, that he had no independent knowledge that Shafer had anything to do with Cox being at the Noodles and Company jobsite on July 8, 2008. Nettekoven also asserted that Shafer had been a problem em- ployee for the last year of his employment. When asked to explain, he maintained that Shafer was arrogant to the office staff when he called in about purchase orders and he had been rude to Nettekoven’s wife about his gas card. Nettekoven ac- knowledged, however, that he had never disciplined Shafer for any behavior. Nettekoven identified the conduct triggering Shafer’s discharge as the manner or tone in which Shafer made his request, rather than any accompanying threat, profanity, or gesture. I take note of the fact that much more offensive and disrup- tive behavior by an employee has failed to lose the protection of the Act. In NLRB v. Thor Power Co., 351 F.2d 584, 587 (7th Cir. 1965), the court affirmed the Board’s finding that an em- ployee did not lose the protection of the Act, despite the em- ployee’s calling the employer a “horse’s ass,” during a griev- ance meeting. I also note that in a 2005 decision, the Board dealt with the circumstance of an employee’s calling the em- ployer a “f—ing son of a bitch” while angrily pointing his fin- ger at the employer. While the Board noted that it did not con- done such insubordination, it also found that the employee did not lose the protection of the Act because of the overall circum- stances of the case. Stanford Hotel, 344 NLRB 558, 559 (2005). In contrast to the cases described above, Shafer’s comments were relatively mild. The circumstances of the instant case might be compared to those considered by the Board in its re- cent decision in Dickens, Inc., 352 NLRB 667, 677 (2008). In Dickens, the alleged misconduct which so angered the em- ployer was the employee’s questioning the employer about bonus rates for other employees and questioning the employer’s veracity about the rates. The employer deemed such conduct insulting when the employee questioned the employer’s verac- ity in front of other employees. Affirmed by the Board, the judge concluded that such comments “did not come close to meeting the stringent standard of egregious conduct” to remove the employee from the protection of the Act. Id. at 11. Counsel for the General Counsel acknowledges that Shafer’s request to meet with Nettekoven on July 8, 2008, and his state- ments made during that request to meet, were not prompted by any unfair labor practice on the part of the Respondent. She argues, however, that despite the absence of any provocation by an unfair labor practice, a weighing of all the Atlantic Steel factors supports a finding that Shafer did not lose the protection of the Act. There is no real dispute in this case that Nettekoven dis- charged Shafer because of his manner and behavior during their conversation on the morning of July 8, 2008. Inasmuch as Shafer was engaged in protected concerted activity when he approached Nettekoven on July 8, 2008, the only remaining question is whether Shafer’s conduct was so egregious that it lost the protection of the Act. Having considered all of the analysis factors set forth by the Board in Atlantic Steel, I do not find that Shafer’s conduct took him outside the protection of the Act. The Board has clearly found that where the conduct for which an employer claims to have discharged an employee is protected activity, the Wright Line7 analysis is not appropriate. Felix Industries, 331 NLRB 144, 146 (2000); Neff Perkins Co., 315 NLRB 1229 fn. 2 (1994). I note, however, that even if the Wright Line standard were applicable, the evidence supports a 7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 finding of unlawful discharge. The General Counsel has met its initial burden of establishing the prerequisites of a prima facie case. The record reflects that within the 2 months prior to his discharge, Shafer met with Union Organizer Jim Stout, and Nettekoven was aware of their meeting. Within a short period of time, Shafer and two other employees requested a meeting with Nettekoven to discuss concerns about wages and other terms and conditions of employment. Lee testified that he and Nettekoven had not expected to discuss wages in the meeting and had been blindsided by the employees’ introduction of the topic. Lee also admitted that it became apparent after the meet- ing that the employees’ meeting with the Union had been the impetus for their requested meeting. In order to make out a prima facie case under Wright Line, the General Counsel must also demonstrate that Shafer’s pro- tected activity was a motivating factor for his discharge. This factor can be proven through direct evidence or can be inferred from circumstantial evidence based upon the record as a whole. Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). While there was no direct evidence of animus toward Shafer for his protected activity, the overall record would support such a find- ing. Nettekoven’s stated reason for his discharge of Shafer was his opinion that Shafer was an “asshole” and he (Nettekoven) had simply had enough of Shafer’s temperament. It is estab- lished that an employer’s pretextual nature of stated reasons for an employee’s discharge will support an inference of the em- ployer’s animus toward the employee’s protected activity. Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem. 97 F.3d 1448 (4th Cir. 1996). Based upon Lee’s testi- mony, it is apparent that Respondent was aware that the previ- ous employee meeting was prompted by the employees’ meet- ing with the Union. In less than 2 months, Nettekoven was confronted with yet another meeting requested by employees to discuss wage concerns. The Board has held that where adverse actions occurs shortly after an employee has engaged in pro- tected activity, an inference of unlawful motive is raised. La Gloria Oil & Gas Co., 337 NLRB 1120 (2002). I find that such an inference may be drawn in this case. Accordingly, the re- cord supports a finding that if a Wright Line analysis were the appropriate standard, the General Counsel has met the burden for establishing a prima face case. Under Wright Line, once the General Counsel has estab- lished the prima facie case, the burden shifts to the employer to show that it would have taken the same action even in the ab- sence of the employee’s protected activity. Metro Transporta- tion Services, 351 NLRB 657, 660 (2007); Roure Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). In its brief, Respon- dent asserts that Shafer was a chronic problematic employee who “provided plenty of motivating reasons for his termination unrelated to any alleged concerted activity.” Respondent relies upon Nettekoven’s testimony that he fired Shafer because he was an “asshole,” and submits that the evidence supports Net- tekoven’s assessment. In his testimony, Nettekoven recited a number of examples of what he viewed as Shafer’s previous misconduct. Nettekoven contended that not only had Shafer been rude to the office staff, other plumbers, suppliers, and even to Cami Nettekoven, he had also told inappropriate jokes. Nettekoven acknowledged, however, that he had never disci- plined Shafer for any of the examples that he cited. In ac- knowledging that he had not done so, he testified: “He’s a grown man, it’s his personality, you know? He’s not a guy you’re going to change.” Nettekoven also admitted that Shafer was not only a very good plumber, but that he knew more than any of the other plumbers and was his best plumber. Net- tekoven described him as his best “all around plumber.” Lee testified that Shafer was an excellent plumber. Interestingly, after Nettekoven fired Shafer, he never met with Cox about the clocking in issue. Nettekoven said that the planned meeting “just kind of got lost in the shuffle,” and Cox did nothing to initiate it. Thus, the overall record supports a finding that Respondent would not have terminated Shafer on July 8, 2008, in the absence of his protected activity. Cox did not pursue the meeting and he continued to be employed until he was laid off with all of Respondent’s other employees in September. While Respondent asserts that Shafer had repeat- edly engaged in rude conduct, he was never disciplined until his protected activity. Clearly, Shafer was Nettekoven’s best plumber and any previous rudeness or abruptness was tolerated until he engaged in protected activity. Accordingly, even under a Wright Line analysis, the overall record supports a finding that Respondent unlawfully terminated Shafer on July 8, 2008. C. Shafer’s Charge On July 10, 2008, Shafer signed a charge alleging that he had been unlawfully terminated on July 8, 2008. The charge was received by the Board’s Regional Office on July 14, 2008. On the same day, a letter was mailed to Nettekoven, notifying him of the charge, and requesting that he submit evidence in re- sponse to the charge. Thus, within approximately 1 week of Shafer’s discharge, Respondent learned of Shafer’s charge. The parties stipulated that on August 26, 2008, the Regional Office faxed a proposed settlement agreement to Nettekoven. Nettekoven also admitted that a few days prior to August 26, 208, he spoke with the investigating Board agent and learned of the Region’s decision in the case. D. Alleged Threat Jeff Raley testified that after Shafer’s discharge, he had oc- casion to talk with Nettekoven about Shafer and he asked Net- tekoven why he terminated Shafer. Nettekoven replied: “Donovan was an asshole and I didn’t like his attitude, so he’s gone.” Raley also recalled that during this same time period, he asked Nettekoven if Cox could fill in for him on a particular job. Raley recalled that during the conversation, Nettekoven stated that Cox was “skating on thin ice” and that Cox needed “to pick his friends better.” When Raley asked what he meant by the statement, Nettekoven replied: “Like Donovan [Shafer].” It is well settled “that when a party fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any factual question on which the witness is likely to have knowledge.” Daikichi Sushi, 335 NLRB 622 (200), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Although Nettekoven remained in the court- room throughout the hearing, he did not rebut Raley’s testi- mony. While Nettekoven is not alleged to have directly threat- ened Raley or Cox, his comments are nonetheless coercive. COOPER CRAFT PLUMBING, INC. 11 His assertion that Cox was skating on thin ice and that Cox should pick friends better than Shafer is especially potent when such comments are made shortly after Nettekoven’s abrupt termination of Shafer. Of the three employees who initially brought their concerns to Nettekoven in May, only Raley and Cox remained. The clear implication was that Raley and Cox should disassociate from Shafer and not engage in any more protected activity. While the record is not sufficiently clear as to the exact date of this conversation, there is the likelihood that it occurred after Shafer filed his charge with the Board. Cer- tainly, such statement would also be viewed as an implied threat to these employees that they should not seek the assis- tance of the Board. Overall, I find Nettekoven’s remarks were coercive in nature and constituted an implied threat in violation of Section 8(a)(1) of the Act as alleged in complaint paragraph 6. See Arnold Junion Fenton Co., 240 NLRB 202, 202 (1979). E. Respondent’s Change in Employees’ use of their Vans 1. Evidence concerning the change in van use Prior to September 1, 2008, several of Respondent’s em- ployees were allowed to drive company vans for their personal transportation to work. Unless they needed to pick up materials or supplies at the shop, they could drive directly to and from the jobsite from their residence. They were not compensated, how- ever, for their commuting time to their jobsites. The employees who were allowed to use the company vans to commute to work were Jeff Raley, Javier Mendoza, and Gerardo Valenzuela. Additionally, Donovan Shafer was given the use of a company van before his discharge in July 2008, and Steve Cox was allowed to use a van after the employees met with Nettekoven in May 2008. On August 22, 2008, employees were notified that they would no longer be permitted to drive company vehicles home at the end of the workday. In a memorandum dated August 22, 2008, Respondent informed employees that beginning on Sep- tember 1, 2008, all company vehicles would remain either at the corporate office or at a location designated by Respondent when not in use. The memorandum gave the following reasons as the basis for the change: 1. Fuel costs are high and vehicles are depreciating too quickly due to excess mileage. 2. Management needs contact with employees each morning during the work week to maintain a good working relationship with employees. 3. The flow of new projects is slowing and some vehi- cles may not need to be used everyday. Access to these vans may be needed for company tools and materials. Cox testified that when he learned of this change in the use of the vans, he spoke with Nettekoven and asked him why he was taking their vans. Nettekoven simply replied that he wanted to see everybody at the shop. During the conversation, Cox re- minded Nettekoven that issues relating to commuting to the worksite had been discussed in the May 2008 meeting. Despite the fact that Cox reminded Nettekoven that it was going to cost Respondent more in the long run for the employees to come to the office and then drive to the worksite each morning, Net- tekoven simply replied that he wanted to see everyone in the morning. 2. Conclusions concerning the change in van use The General Counsel argues that Respondent’s actions were motivated by animus toward employees’ union and protected concerted activities, and because Shafer filed his charge on July 14, 2008. Neither Nettekoven nor any other Respondent wit- ness testified concerning the reason for the change in van use. Nettekoven told Cox that he wanted to see all the employees at the shop and the memorandum asserts that management needed the daily contact with employees in order to maintain a good working relationship with employees. Respondent’s written rationale and the unrebutted verbal rationale given to Cox curi- ously reflects a concern about the daily activities of its employ- ees that had not been demonstrated previously. Such a new- found attentiveness to the daily activities of its employees is significant in light of the status of Shafer’s charge. Nettekoven acknowledged that within a “few” days before August 26, 2008, he was aware that the Region had found merit to the charges and was proceeding to either settlement or trial. I take administrative notice of the fact that August 26, 2008, occurred on a Tuesday. The memorandum restricting employees’ use of the vans issued on Friday, August 22, 2008, and within 2 work- days of the Board’s fax confirming that the Board was seeking a remedy to Shafer’s unfair labor practice charge. Accordingly, the Respondent was not only aware of Shafer’s unfair labor practice charge on August 22, 2008, but was most likely also aware that the Region intended to take the matter to hearing. It is reasonable that Respondent wanted daily contact with its employees in order to monitor employee activities and to ascer- tain whether any other employees were likely to engage in pro- tected conduct, rather than the asserted new interest in main- taining a “good working relationship with employees.” Certainly, denying the use of the company vans to commute from their homes to work adversely affected the employees. Additionally, there is no dispute that Respondent was aware that its employees had engaged in protected and union activity. As counsel for the General Counsel points out in her brief, August 22, 2008, is also the date upon which Respondent, act- ing through Cami Nettekoven, created Studio 36 as a limited liability company and 5 days before KC Commercial was in- corporated as a new company to perform residential and com- mercial plumbing. While the change in the use of vans would not necessarily support a finding of unlawful motivation stand- ing alone, the change in conjunction with Respondent’s other actions, supports a finding of unlawful motivation. Timing has been found to be a significant factor in assessing discriminatory motivation for an employer’s adverse actions toward employ- ees. L.B. & B. Associates, Inc., 346 NLRB 1025, 1026 (2006), enfd. 232 Fed. Appx. 270 (4th Cir. 2007). Based upon the overall record, and especially in light of the timing of the action, it is apparent that the General Counsel has met its burden of showing that Respondent’s change in the employees’ use of company vans was motivated, at least in part, by employees’ union and protected activities. Thus, coun- sel for the General Counsel has met her burden of proving that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 employees’ protected activities were at least a partial motivat- ing factor in Respondent’s adverse change in working condi- tions. Wright Line, 251 NLRB 1083 (1980); NLRB v. Trans- portation Management Corp., 462 U.S. 393 (1983). As dis- cussed above, Respondent presented no additional evidence to show the basis for the August 22, 2008 memo. Although all of the factors listed in the memorandum are plausible reasons for the change, Respondent has not demonstrated by a preponder- ance of the evidence that it would have withdrawn employees’ use of the vans to commute to work in the absence of protected conduct. W.F. Bolin Co., 311 NLRB 1118, 1119 (1993). Ac- cordingly, I find merit to complaint paragraph 7(d). 3. Cox’s charge against Respondent Cox testified that he spoke with Nettekoven in August about upcoming work projects. He recalled that Nettekoven told him about a Buffalo Wild Wings project in Kansas City. Net- tekoven also mentioned a job in Harrisonville with Harris Con- struction as the general contractor. Cox recalled that Net- tekoven stated that it “was pretty much a done deal” that Re- spondent would get the job and asked Cox how far that would be from where he lived. In early September, however, Net- tekoven called Cox with different information. Nettekoven told Cox that he should put out feelers to find a new job. Net- tekoven told Cox that the employees’ insurance had been ter- minated and that the van he was using had to be returned. Net- tekoven went on to explain that Cox would be laid off after he finished the job at the Valvoline worksite and the job was esti- mated to end on approximately October 27. Raley testified that within a month prior to his layoff on September 17, 2008, Net- tekoven told him that when he completed the job on which he was working that he would no longer be needed and he would be laid off. On September 11, 2008, Cox filed a charge against Respon- dent alleging that on or about August 31, 2008, Respondent told Cox and Raley that they were going to be laid off and fur- ther alleged that the layoff was in retaliation for Shafer having filed a charge against Respondent. In the charge, Cox also alleged that on or about August 31, 2008, Respondent unlaw- fully changed its policy of allowing employees to drive their vans home and unlawfully terminated employees’ health insur- ance. Cox alleged that these actions were taken in retaliation for Shafer’s charge against the Respondent and in retaliation for employees’ protected concerted activity and union activity. F. Respondent’s Creation of New Companies and the Layoff of Employees 1. Creation of the new companies On August 22, 2008, Cami Nettekoven filed for the incorpo- ration of Studio 36 LLC, a limited liability company organized to conduct real estate investment. Both Tim Nettekoven and Cami Nettekoven are managing partners of the corporation. Studio 36 thereafter purchased a building located at 3600 Troost Avenue in Kansas City, Missouri. The upstairs of the building became the personal residence for Tim Nettekoven, Cami Nettekoven, and their children in October 2008. Respon- dent also stipulates that KC Commercial was incorporated in the State of Missouri on August 27, 2008, by Cami L. Net- tekoven to own, manage, and operate as a commercial and resi- dential plumbing contractor in the greater Kansas City geo- graphic area. Cami Nettekoven is not only the registered agent for the corporation, but also the president and secretary of the business. The downstairs of the building located at 3600 Troost Avenue is used by Copper Craft, Kansas City Plumbing, and KC Commercial as a shared facility. 2. Nettekoven’s conversation with Javier Mendoza About a month prior to the layoff, Nettekoven spoke with Javier Mendoza at Respondent’s facility after everyone left for the day. Nettekoven told Mendoza that the matter involving Shafer was “just getting crazy.” Nettekoven stated that he had not been doing so well with Kansas City Plumbing and the matter with Shafer’s discharge was “the last straw.” Net- tekoven shared that he was thinking about closing down the company. When Mendoza questioned him, Nettekoven assured Mendoza not to worry because he was starting a new company and there would be a job for Mendoza. Nettekoven told Men- doza that he would be laid off with all the other employees and then would be called back to work again. Nettekoven cau- tioned Mendoza not to tell anyone about the new company or about the layoff. Mendoza further testified that approximately a week before the layoff, he was notified to come to the office. When he ar- rived at the office, Cami Nettekoven gave him an envelope containing a job application. Attached to the application was a note with the words: “Javier, I’ve started a new company and I’d like you to apply. Cami.” Mendoza testified that Cami Nettekoven told him to fill out the application, come in, and she would interview him. On September 16, 2008, Mendoza was working with Jim Newstrom at the Petsmart jobsite. As noted earlier in this deci- sion, Newstrom was a master plumber and an admitted agent of Respondent within the meaning of Section 2(13) of the Act. Newstrom made the comment that they should try to accom- plish as much as possible on the job that day because they might not come back to the job. Newstrom went on to add that they might not come back to any of the jobs. Later in the day, Mendoza again spoke with Newstrom while they were driving from the jobsite to Respondent’s facility. Mendoza testified that Newstrom began talking about Respondent’s new company and assured Mendoza that he didn’t have to worry. Newstrom explained to Mendoza that the new company would be in Cami Nettekoven’s name and would operate by using Newstrom’s master plumber’s license. Newstrom asserted that jobs were already lined up for the new company and he commented that things were looking really good for the new company. During the conversation Newstrom and Mendoza spoke about the ex- pected length of time before Nettekoven would bring Mendoza back to work for the new company. Mendoza told Newstrom that he would not mind being off work until October 1, 2008, in order to have some vacation time. 3. The layoff During the course of the day on September 16, 2008, em- ployees were told that they were to attend a meeting at the of- fice the following day and to bring their fuel and store credit cards with them. When he met with the employees, Nettekoven COOPER CRAFT PLUMBING, INC. 13 told them that he was “tired of running ragged” and he was going to close the doors and “finish up what was left.” Men- doza recalled that Nettekoven told employees that the company had not been doing well and he was not able to get more jobs. In addition to Cami Nettekoven and Tim Nettekoven, there was another unidentified woman present at the meeting who told the employees about how they could apply for, or train for other jobs. When Cami Nettekoven spoke briefly at the meeting, she explained that because her husband had not been spending enough time at home with his children, the decision was made to change operations. Mendoza testified that within 30 minutes of Nettekoven’s meeting with employees, Nettekoven telephoned him. Net- tekoven stated that he had heard from Newstrom that Mendoza would not mind being off work until October 1, 2008, and Mendoza confirmed what he told Newstrom. Mendoza testified that Nettekoven ended the conversation by saying that Men- doza should make sure to have his work clothes ready on Octo- ber 1. Nettekoven also added that while he couldn’t pay him for doing so, he could use Mendoza’s help in moving to the new facility. Mendoza explained that he would not be able to do that without compensation because of the expense required for not only gas, but also baby-sitting costs for his two little girls. Nettekoven ended the conversation by confirming that employees would meet on October 1 at his house. When Mendoza had not heard anything further about return- ing to work for Nettekoven by September 28, he began trying to reach Nettekoven. Although he telephoned Nettekoven daily, he was not able to speak with him until October 1. Dur- ing the telephone conversation, Nettekoven talked about the extent of the Board agent’s investigation8 of the pending charges and made the comment that “it’s going way out of pro- portion.” Nettekoven added: “I would hate to bring you on to something like this.” Mendoza testified that Nettekoven then added: “But it’s okay, though, right? Because I mean, you’re already on unemployment.” Mendoza asked Nettekoven why he would be on unemployment when Nettekoven had told him not to look for a job. Mendoza did not pursue the inquiry fur- ther, however, and simply wished Nettekoven good luck. He testified that he heard nothing further from Nettekoven. 4. Respondent’s evidence concerning reason for layoff The only witness called by Respondent to testify concerning the basis for the September 2008 layoff was Lee, who worked for Respondent from September 2007 until mid-May 2008. Prior to working for Respondent, Lee owned a construction company for 5 years. He first met Nettekoven when he hired Nettekoven’s company as a subcontractor to do residential plumbing work. As a result of working together, Lee and Net- tekoven became friends and have remained friends. In Sep- tember 2007, Lee began working for Respondent. Lee testified that just prior to his accepting the job with Respondent, Net- tekoven contacted him and asked for his help. Nettekoven told him that an employee who had worked as an estimator and project manager had embezzled money from the Company and 8 The transcript erroneously identifies the Board agent as “Mary Tate” rather than “Mary Taves.” he asked Lee to work for him and to handle estimates for jobs that the Company was bidding. Lee testified that another of his responsibilities was to assess the health of the Company. He testified that organizationally the Company was in a state of disarray and that the Company carried a disproportionate amount of debt in relation to income. Lee testified that there was an $80,000 debt owed to IRS and also $80,000 owed for the purchase of a backhoe. He also asserted that there was a line of credit due to a bank for $120,000. Lee also claimed that the usual credit balance for one of Respondent’s vendors ranged from $90,000 to $120,000. Although Lee recited the series of debts and financial obligations, he produced no sup- porting documents. Lee described the Company when he left in mid-May 2008, and opined: “[I]t was looking like we were coming in for a real hard patch.” Lee maintained that beginning in January 2008, he began to recommend monthly to Nettekoven that he should close down the Company. Lee testified that he left the Com- pany in May 2008, because he felt that he could no longer do any good in his job. 5. Conclusions concerning the layoff Counsel for the General Counsel does not contend that Re- spondent deliberately chose certain employees for layoff be- cause of their particular union, or protected concerted activity, but rather that the mass layoff was ordered to discourage em- ployees’ activities that are protected by the Act. Counsel for the General Counsel also asserts that Respondent engaged in “a course of action in which they abandoned and subsequently created corporations in retaliation for employees engaging in Union and protected, activity, as well as to evade their statutory obligation to remedy the unfair labor practices they commit- ted.” Because of the timing and the circumstances of the two events, it is apparent that Respondent’s layoff of its employees on September 17, 2008, must be viewed in relation to Respon- dent’s creation of KC Commercial and Studio 36. Respondent argues in brief that the Company acted consis- tent with a company facing a downward financial spiral. Based upon the testimony of Lee, as well as the testimony of em- ployee witnesses, it is apparent that whether recognized as Copper Craft or Kansas City Plumbing, Respondent’s business could not have been characterized as thriving. Lee testified, without contradiction, about a number of expenses and debts that plagued Respondent’s financial situation. Respondent argues that the General Counsel produced no evidence to rebut Lee’s assessment that Respondent’s financial condition war- ranted its closing as early as January 2008. Although Lee’s testimony was unrebutted in this regard, his assessment also supports a finding of Respondent’s discriminatory motive. If Lee is to be credited, I must conclude that Nettekoven had a legitimate and economic basis for closing his business as early as January 2008. Despite recommendations from Lee, how- ever, Nettekoven continued the business for approximately 7 more months before he rid himself of his employees and cre- ated a new business. Although Respondent’s economic situa- tion may not have improved in the interim, the significant in- tervening event was Shafer’s unfair labor practice charge; which included the potential for both a financial remedy, as DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 well as, Shafer’s reinstatement. By the time of the September 17 layoff, Respondent was aware that not only had the Region found merit to Shafer’s charge, but the Region was additionally investigating the charge filed by Cox. Respondent’s reaction to Shafer’s charge is seen most vividly in Nettekoven’s comments to Mendoza in August 2008. Mendoza’s unrebutted testimony reflects that Nettekoven told him that the matter involving Shafer was “just getting crazy.” Nettekoven added that he had not been doing so well with Kansas City Plumbing and that the matter with Shafer’s charge was the “last straw.” Nettekoven went on to share his plan to lay off the employees and to start a new company. Nettekoven’s statements reflect that the Re- gion’s investigation and Shafer’s charge played a distinct role in his decision to close the Company and to create a new com- pany. Nettekoven’s discriminatory motivation in doing so is evident by the fact that he cautioned Mendoza not to tell any- one about the new company or the layoff. Mendoza produced not only a written application form, but also a written note from Cami Nettekoven confirming that she was starting a new company and that she wanted him to apply. Mendoza also testified that admitted agent Jim Newstrom told him that Respondent was starting a new company in Cami Net- tekoven’s name and that the company would operate under Newstrom’s plumber’s license. I find it significant that Net- tekoven did not rebut Mendoza’s testimony and neither Cami Nettekoven nor Newstrom were presented to rebut or contradict Mendoza’s testimony. Overall, I found Mendoza to be a credi- ble witness. His description of his conversations with Net- tekoven and Newstrom were straight-forward with no apparent attempt to embellish or exaggerate. His testimony reflected no perceptible personal anger or resentment for Cami Nettekoven or Tim Nettekoven. His lack of animus or sentiment toward Nettekoven is apparent in his description of his conversation with Nettekoven when Nettekoven asked for Mendoza’s assis- tance in moving to the new facility. Mendoza testified that when he told Nettekoven that he could not help him move without compensation for gas or baby sitting, Nettekoven re- sponded that he would call his “real friends.” Mendoza quickly added in his testimony that he didn’t think that Nettekoven said this to offend him and that it “just came out that way.” Mendoza’s testimony is further enhanced by the testimony of admitted Supervisor Lee. Although Lee was no longer em- ployed by Respondent at the time of the layoff, he assisted Nettekoven in moving some inventory to the new facility and spoke with him about his business. Lee testified that Net- tekoven told him that he was going to start a new plumbing business under a different name. This testimony is consistent with Mendoza’s testimony concerning the information received from both Cami Nettekoven and Jim Newstrom. Based upon Mendoza’s unrebutted and credible testimony, it is apparent that Respondent intended to hire only specific employees for the new plumbing business. It is reasonable that Mendoza would have been a desirable employee to rehire because he had no union activity, no involvement with Shafer, Cox, or Raley in protesting terms and conditions of employment, and he had filed no charges with the Board. In Midwest Precision Heating & Cooling, 341 NLRB 435, 439 (2004), the Board affirmed the judge in concluding that the only reasonable explanation for an employer’s going through the legal process of creating a new company and terminating old ones was ultimately to avoid the obligation under the col- lective-bargaining agreement. While there is no union contract in this case, Respondent was, nevertheless, facing the potential remedy of reinstating Shafer and the financial obligation of paying backpay. A number of factors support the General Counsel’s prima facie case. The Board has found timing to be a significant element in finding a prima facie case of an unlaw- ful layoff. See Equitable Resources Energy Co., 307 NLRB 730, 731 (1992). In this case, Respondent implemented the layoff of all of its employees after its creation of the two new companies and after learning that the Region had found merit to Shafer’s charge. Respondent’s unlawful motive for the layoff is seen in the unrebutted testimony of Mendoza. Additionally, Respondent’s unlawful motive is not negated by the fact that most of the employees laid off had not engaged in protected activity. The Board has found that unlawful motivation may be shown even when an employer takes adverse action against a group of employees regardless of their individual protected activities if the action was ordered to discourage protected ac- tivity or if it was in retaliation for the protected activity of some employees. ACTIV Industries, 277 NLRB 356 (1985). Respondent argues that the September layoffs were not dis- criminatory because the employees were not engaged in con- certed protected activity. Specifically, Respondent asserts that there was no union organization occurring and there had been a 4-month gap between the May meetings and the September layoff. Respondent is correct that there is no evidence that employees were engaged in union organizing and there had been a 4-month interval since Shafer, Cox, and Raley met with Nettekoven and Lee. Respondent’s argument is nevertheless flawed because the record contains clear evidence of protected activity after May. Section 8(a)(4) of the Act provides, and the Board has found, that an employer commits an unfair labor practice when it discriminates against an employee who files charges or gives testimony under the Act. See McKesson Drug Co., 337 NLRB 935 (2002); Freightway Corp., 299 NLRB 531, 532 (1990). Thus, it is axiomatic that an employee’s filing a charge with the Board is also protected activity. In mid-July, Respondent employed approximately 12 employees. By Sep- tember 17, 2008, two of those employees had filed charges with the Board. The General Counsel is not required to show a relationship between each employee’s union or protected activity and his layoff. The General Counsel need only show that the mass layoff was ordered to discourage protected activity or in retalia- tion for the protected activity of some of its employees. J. T. Slocomb Co., 314 NLRB 231, 241 (1994). As the court noted in Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985), general retaliation by an employer against the work force can discourage the exercise of Section 7 rights just as effectively as adverse action taken against employees who have engaged in protected activities. Accordingly, I con- clude that the General Counsel has made a prima facie showing sufficient to support the inference that employees’ protected conduct was a “motivating factor” in Respondent’s decision to lay off its work force on September 17, 2008. Wright Line, 251 COOPER CRAFT PLUMBING, INC. 15 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Upon such a showing, the burden shifts to Respondent to demonstrate that the same action would have taken place even in the absence of the protected conduct. See Manno Electric, Inc., 321 NLRB 278, 280 at fn. 12 (1996). The Respondent cannot carry this burden merely by showing that it had a legitimate reason for its layoff. Respondent must demonstrate by a preponderance of the evidence that the layoff would have taken place absent protected conduct by its em- ployees. Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). As I have discussed above, the timing of the layoff, the creation of the new companies, and Mendoza’s credible testimony con- cerning the revealing statements of Cami Nettekoven, Timothy Nettekoven, and Jim Newstrom are all factors that weigh in favor of my finding that the General Counsel has demonstrated that employees’ protected activity was a substantial or motivat- ing factor in Respondent’s layoff of its employees on Septem- ber 17, 2008. In such instances in which the General Counsel has made out a strong prima facie case under Wright Line, the burden on the respondent is substantial to overcome a finding of discrimination. Vemco, Inc., 304 NLRB 911, 912 (1991); Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991). Thus, while Respondent’s financial circumstances may have consti- tuted a legitimate reason for its layoff, Respondent has not shown by a preponderance of the evidence that the layoff would have occurred when it did in the absence of employees’ protected activities. Cox testified, in fact, that at the time of his layoff, there were still approximately 3 to 4 weeks of work remaining. While Lee testified that Respondent was experienc- ing financial problems in January 2008, neither Nettekoven or any other representative of Respondent explained the basis for the creation of the new companies in August 2008 and the lay- off of its employees in September 2008. Lee, however, testi- fied that Nettekoven told him that he was going to open the same business under a different name. As counsel for the Gen- eral Counsel points out in her brief, it is not reasonable for Re- spondent to lay off its employees and then to “turn around and immediately open an identical business.” Thus, Respondent has not met its burden of demonstrating that it would have taken the same actions in the absence of employees’ protected activity. I find that the overall evidence supports finding the September layoff in violation of Section 8(a)(1), (3), and (4) of the Act. G. Respondent’s Continuing Liability As described above, Mendoza testified that when he last spoke with Nettekoven, Nettekoven talked about the Board agent’s investigation of his new business; including not only photographs but also visits to the jobsites. Counsel for the General Counsel argues that it was only Nettekoven’s belief that the Board was monitoring his new business that kept Re- spondent’s business from rising to the level it was before the creation of the new companies. Counsel for the General Coun- sel acknowledges that while there was some evidence at the hearing that Copper Craft, Kansas City Plumbing, and KC Commercial may no longer be in business, there is nothing that extinguishes Respondent’s reinstatement obligations to all of the discriminatees or to toll the discriminatees’ backpay. 1. KC Commercial as an alter ego In Diverse Steel, Inc., 349 NLRB 946 (2007), the Board ob- served that it would generally find alter ego status where two entities have substantially identical management, business pur- poses, operations, equipment, customers, supervision, and own- ership. The Board went on to explain that not all of these indi- cia need to be present and no one of them is a prerequisite to finding an alter ego. Respondent stipulated that Tim Net- tekoven and Cami Nettekoven continued to manage and super- vise the business of KC Commercial, just as they managed the business of Copper Craft and Kansas City Plumbing. Respon- dent also stipulated that KC Commercial used the equipment, tools, office furniture, vehicles, and office supplies of Copper Craft and Kansas City Plumbing. Respondent further stipulates that KC Commercial performed work for the same type of cus- tomers as those that had historically been serviced by Copper Craft and Kansas City Plumbing. There is no dispute that Cop- per Craft, Kansas City Plumbing, and KC Commercial all oper- ated out of a shared facility that was owned by Studio 36. No rent was charged to Copper Craft, Kansas City Plumbing, or KC Commercial for the use of the shared facility. Copper Craft and Kansas City Plumbing were owned by Timothy Nettekoven and Cami Nettekoven. Cami Nettekoven is shown to be the owner of KC Commercial in the incorporation of the company on August 27, 2008. Thus, the record establishes that Copper Craft, Kansas City Plumbing, and KC Commercial have substantially identical management, business purposes, operations, equipment, cus- tomers, and supervision. While only Cami Nettekoven is shown to be the owner of KC Commercial, I also note that the Board has found that where other alter ego factors exist, owner- ship of two companies by members of the same immediate family is deemed to be “substantially identical” ownership. Kenmore Contracting Co., 289 NLRB 336, 337 (1988), enfd. mem. 888 F.2d. 125 (2d Cir. 1989). Although unlawful moti- vation is not a necessary element in finding an alter ego, the Board also considers whether the purpose behind the creation of the alleged alter ego was to evade responsibilities under the Act. Diverse Steel, supra at 946. Despite the fact that Respon- dent laid off all its employees on September 17, 2008, Respon- dent undertook the expense and time to create an entirely new company on August 24, 2008, that would conduct the same business for the same group of customers under the same su- pervision and management. There is no other logical explana- tion for Respondent’s doing so other than an attempt to avoid the legal obligations of Copper Craft and Kansas City Plumb- ing. See Midwest Precision Heating & Cooling, Inc., 341 NLRB at 439. The record evidence therefore demonstrates that KC Commercial was established in retaliation for employees’ protected concerted activities and to avoid Respondent’s liabil- ity under the Act. Accordingly, I must conclude that KC Commercial is an alter ego of Copper Craft and Kansas City Plumbing and was created as a disguised continuance of Cop- per Craft and Kansas City Plumbing. Accordingly, KC Com- mercial shares the same responsibilities and obligations under the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 2. Studio 36’s liability under the Act Respondent asserts that Studio 36 was a corporation that was created solely to purchase and to own the building that served as the personal residence of Timothy and Cami Nettekoven, and to serve as a warehouse for Copper Craft, Kansas City Plumbing, and KC Commercial. There is no evidence that Studio 36 has ever engaged in the business of plumbing. Net- tekoven admitted that although Copper Craft, Kansas City Plumbing, and KC Commercial lease space from Studio 36, no rent is paid to Studio 36. When he was asked whether the other corporations paid rent to Studio 36, Nettekoven responded: “No, because I have enough creditors banging on my door. We did not charge any rent to anyone because I’d rather pay my creditors than—I mean, it doesn’t make sense.” Nettekoven testified that he moved all of the vehicles, inventory, and plumbing equipment belonging to Copper Craft and Kansas City Plumbing to the facility owned by Studio 36. He further explained that it had been his intention to then operate KC Commercial on the first floor of the Studio 36 facility; while he and his family resided on the second floor. Nettekoven con- firmed that while his wife established Studio 36 as a corpora- tion, he was also a managing member of that limited liability company. Counsel for the General Counsel confirms that she is not seeking personal liability for the Nettekoven’s. She does, how- ever, seek liability for Studio 36 to remedy the unfair labor practices discussed above. In White Oak Coal, 318 NLRB 732 (1995), the Board set out a two-part analysis for assessing per- sonal liability for the shareholders of corporations committing unfair labor practices. Under White Oak Coal, the corporate veil may be pierced when (1) there is such unity of interest, and lack of respect given to the separate identity of the corporation by its shareholders, that the personalities and assets of the cor- poration and the individuals are indistinct, and (2) adherence to the corporate form would sanction a fraud, promote injustice, or lead to an evasion of legal obligations. Using this same analy- sis, counsel for the General Counsel submits that Studio 36 should be held liable as an alter ego and single employer with Copper Craft, Kansas City Plumbing, and KC Commercial. In determining whether the personalities and assets of a cor- poration and its shareholders have become indistinct are the degree to which corporate formalities have been maintained and the extent to which individual and corporate funds, assets, and affairs have been commingled, the Board in White Oak Coal considered the following factors: (1) whether the corporation is operated as a separate entity; (2) the commingling of funds and other assets; (3) the failure to maintain adequate corporate records; (4) the nature of the corporation’s ownership and control; (5) the availability and use of corporate assets, the absence of same, or undercapitali- zation; (6) the use of the corporate form as a mere shell, in- strumentality or conduit of an individual or another corpora- tion; (7) disregard of corporate legal formalities and the fail- ure to maintain an arm’s length relationship among related en- tities; (8) diversion of the corporate funds or assets to noncor- porate purposes; and, in addition, (9) transfer or disposal of corporate assets without fair consideration. The record does not contain specific information that would address each of these factors. Counsel for the General Counsel submits, however, that several of the factors are present. She asserts: “The overarching evidence of corporate misuse is, of course, the testimony concerning the establishment of corporate identities under Cami Nettekoven’s name in an effort to hide Tim Nettekoven’s involvement in the business.” Counsel for the General Counsel argues that Tim Nettekoven used both KC Commercial and Studio 36 as shells of Copper Craft and Kan- sas City Plumbing “so that he could continue in the plumbing business without the worries of unfair labor practice liability.” Although there is no evidence that Studio 36 engaged in the business of plumbing, the overall record reflects a blending of identities of the four corporations and their principals. Studio 36 provided not only the residence for Timothy and Cami Net- tekoven, but also the operating and warehousing facility for the other three corporations. Not only was there no compensation paid to Studio 36, there was an absence of any other arm’s length transactions between Studio 36 and the other corpora- tions. The overall evidence reflects not only that Studio 36 has a sufficient unity of interest with the other three corporations, but also a lack of respect for the separate identity of Studio 36 from the other three corporations. See A. J. Mechanical, Inc., 352 NLRB 874 (2008). The record fully supports the conclu- sion that the personalities and assets of the four corporations are indistinct. In White Oak Coal, supra, the Board also indicated that the second prong of the test must have some causal relationship to the first prong of the test. Stated in another way, the fraud, injustice, or evasion of legal obligations must flow from the misuse of the corporate form. Counsel for the General Counsel submits that the second prong is met because “the fundamental purpose of the Nettekoven’s establishment of KC Commercial and Studio 36 was to promote a method to conceal his owner- ship and control of each corporation and thereby evade his labor law obligations.” The record as a whole indicates that KC Commercial and Studio 36 were formed in an attempt to evade the Respondent’s responsibilities under the Act. Addi- tionally, it is apparent that while Studio 36 did not function as a commercially viable plumbing business, it was nevertheless created as a shell, instrumentality, or conduit to insulate Net- tekoven’s plan to continue his plumbing business as KC Com- mercial without the legal obligations engendered by Copper Craft and Kansas City Plumbing. See Diverse Steele, Inc., 349 NLRB 946, 946 (2007). Accordingly, I find that Studio 36 is an alter ego of Copper Craft, Kansas City Plumbing, and KC Commercial and was created as a disguised continuance of Copper Craft and Kansas City Plumbing. CONCLUSIONS OF LAW 1. Respondents Copper Craft Plumbing, Inc. and Respondent Kansas City Plumbing, Inc. constitute a single-integrated busi- ness enterprise and a single employer within the meaning of the Act. 2. Respondents KC Commercial Plumbing, Inc. and Studio 36 LLC were established by Copper Craft Plumbing, Inc. and Respondent Kansas City Plumbing, Inc. as a disguised continu- COOPER CRAFT PLUMBING, INC. 17 ance of Copper Craft Plumbing, Inc. and Respondent Kansas City Plumbing, Inc. 3. Respondents Copper Craft Plumbing, Inc., Kansas City Plumbing, Inc., KC Commercial Plumbing, Inc., and Studio 36 LLC have been at all material times, alter egos and a single employer within the meaning of the Act. 4. As a single employer and alter egos, Respondents Copper Craft Plumbing, Inc., Kansas City Plumbing, Inc., KC Com- mercial Plumbing, Inc., and Studio 36 LLC, herein collectively identified as Respondent, is an employer within the meaning of Section 2(2) of the Act. 5. Local 8, Plumbers and Gasfitters is a labor organization within the meaning of Section 2(5) of the Act. 6. By threatening employees with unspecified reprisals be- cause they engaged in union or other protected concerted activi- ties, Respondent violated Section 8(a)(1) of the Act. 7. By discharging Donovan Shafer because of his protected concerted activity, Respondent violated Section 8(a)(1) of the Act. 8. Denying employees the opportunity to drive work vans home at the end of the workday in order to discourage employ- ees in the exercise of their Section 7 rights, Respondent vio- lated Section 8(a)(3), (4), and (1) of the Act. 9. By laying off employees Steve Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Gerardo Valenzuela Sr., Gerardo Valenzuela, Roberto Becerra, and Justin Beauchamp on September 17, 2008, in order to dis- courage employees in the exercise of their Section 7 rights, Respondent violated Section 8(a)(3), (4), and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily discharged Dono- van Shafer, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent having discriminatorily laid off Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Justin Beauchamp, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, and Ismael Castillo, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., supra, plus interest, as computed in New Horizons for the Retarded, supra. Counsel for the General Counsel urges that the current prac- tice of awarding only simple interest on backpay and other monetary awards be replaced with the practice of compounding interest. Counsel for the General Counsel attached an Appen- dix to her written brief outlining the basis for her recommenda- tion. In its decision in National Fabco Mfg., Inc., 352 NLRB No. 37, slip op. at fn. 4 (March 17, 2008) (not reported in Board volumes), the Board addressed a similar request by the General Counsel. Referencing a previous decision in Rogers Corp., 344 NLRB 504 (2005), the Board explained: “Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest.” Accordingly, I deny counsel for the General Counsel’s request for an order requiring compound interest. Inasmuch as I have found KC Commercial Plumbing, Inc. and Studio 36 LLC as alter egos and a disguised continuance of Copper Craft Plumbing, Inc., and Kansas City Plumbing, Inc., I find that all four entities are jointly and separately liable for Respondent’s unfair labor practices and the remedy thereof. Counsel for the General Counsel asserts that because of Re- spondent’s discriminatory discharge of Shafer and its discrimi- natory layoff of other employees, the General Counsel seeks the traditional remedy of reinstatement and backpay for the discriminatees. The General Counsel also acknowledges that there was some record evidence that Copper Craft, Kansas City Plumbing, and KC Commercial may no longer be in business. The General Counsel argues, however, that because Respon- dent has used the corporate entities in a shell game to avoid its obligations under the Act, a full restoration remedy including both backpay and reinstatement for all discriminatees is appro- priate. I agree that inasmuch as Respondent has unlawfully terminated Shafer and unlawfully laid off other employees, a full restoration remedy including both reinstatement and back- pay is not only appropriate, but required. I also realize, how- ever, that in the event that Respondent’s business operation has ceased in its entirety, the potential extinguishment of reinstate- ment obligations and the appropriate period for the backpay obligation may have to be fully determined through the compli- ance phase of this proceeding. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9 ORDER The Respondents, Copper Craft Plumbing, Inc., Kansas City Plumbing, Inc., KC Commercial Plumbing, Inc., and Studio 36 LLC, as alter egos and a single employer, in Kansas City, Mis- souri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with unspecified reprisals be- cause they engaged in union and other protected concerted activities. (b) Denying employees the opportunity to drive company vehicles to their homes in order to discourage employees in the exercise of their Section 7 rights. (c) Terminating employees for engaging in protected con- certed activities. 9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 (d) Laying off employees in order to discourage employees in the exercise of their Section 7 rights. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, make whole Donovan Shafer, with interest, for any loss of wages and benefits that he suffered as a result of Respondent’s unlawfully discharging him on July 8, 3008. (b) Within 14 days from the date of the Board’s Order, make whole, with interest, Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other employees included in the Septem- ber 17, 2008 layoff for any loss of wages and benefits that they suffered as a result of Respondent’s unlawful layoff. (c) Within 14 days from the date of the Board’s Order, offer Donovan Shafer, Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other employees included in the Septem- ber 17, 2008 layoff reinstatement to their former jobs, or if those jobs no longer exists, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights and privileges previously enjoyed. (d) Within 14 days from the date of the Board’s Order, re- move from its files any reference to the unlawful discharge of Donovan Shafer, and, within 3 days thereafter, notify Donovan Shafer in writing that this has been done and that the discharge will not be used against him in any way. (e) Within 14 days from the date of the Board’s Order, re- scind the notice to employees of August 22, 2008, denying our employees the opportunity to drive company vehicles to em- ployees’ homes. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Kansas City, Missouri facility copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 17 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. Reason- 10 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.” able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. (h) Within 14 days after service by the Region, mail copies of the attached notice marked “Appendix.” Respondent shall duplicate and mail at its own expense, a copy of the notice to all employees employed by the Respondent at any time since July 8, 2008. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, April 30, 2009 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in concerted protected activity. WE WILL NOT threaten you with unspecified reprisals because you engage in union or other protected concerted activities. WE WILL NOT deny you the opportunity to drive company vehicles to your homes in order to discourage you from engag- ing in activities that are protected by Section 7 of the Act. WE WILL NOT layoff our employees in order to discourage them from engaging in activities that are protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Donovan Shafer, and WE WILL, within 3 days thereafter, no- tify him in writing that this has been done and that the dis- charge will not be used against him in anyway. WE WILL, within 14 days from the date of the Board’s Order, offer Donovan Shafer, Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other employees included in the Septem- ber 17, 2008 layoff, reinstatement to their former jobs or, if those jobs no longer exists, to substantially equivalent jobs, COOPER CRAFT PLUMBING, INC. 19 without prejudice, to their seniority or any other rights or privi- leges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Order, make whole Donovan Shafer for any lost wages because of his discriminatory discharge on July 8, 2008. WE WILL, within 14 days from the date of the Board’s Order, rescind our notice to employees of August 22, 2008, denying you the opportunity to drive company vehicles to your homes. WE WILL, within 14 days from the date of the Board’s Order, make whole Steven Cox, Jeff Raley, Charles Simms, Javier Mendoza, James Newstrom, Ismael Castillo, Gerardo Valenzuela, Gerardo Valenzuela Sr., Roberto Becerra, Justin Beauchamp, and any other employees included in the Septem- ber 17, 2008 layoff for any lost wages because of their dis- criminatory layoff. COPPER CRAFT PLUMBING, INC., AND KANSAS CITY PLUMBING, INC., A SINGLE EMPLOYER AND THEIR ALTER EGOS KC COMMERCIAL PLUMBING, INC. AND STUDIO 36 LLC