Flow Service Partners Op-Co, LLC d/b/a Perfection Heating, Air Conditioning, and Refrigeration LLC

373 NLRB No. 4 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. Flow Service Partners OP-CO, LLC d/b/a Perfection Heating, Air Conditioning, and Refrigeration, LLC and Sheet Metal Workers, Air, Rail, and Transportation Workers Local Union No. 20 A/W International Association of Sheet Metal, Air, Rail, and Transportation Workers. Cases 25–CA–292574 and 25–CA–293162 December 19, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On April 18, 2023, Administrative Law Judge Charles J. Muhl issued the attached decision. The General Coun- sel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to 1 The Charging Party filed an “Answering Brief” to support the Gen- eral Counsel’s brief in support of exceptions, but filed no exceptions. On September 1, 2023, the Board granted the Respondent’s motion to strike the Charging Party’s brief as an improper and untimely filing pursuant to Sec. 102.46(a) of the Board’s Rules and Regulations. 2 The General Counsel has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In the absence of exceptions, we adopt the judge’s finding that the Respondent violated Sec. 8(a)(1) when Vice President Ryan Lewis in- structed employees Travis Powers and Kaleb Walters to wear their com- pany-issued T-shirts rather than their union organizer T-shirts. We adopt the judge’s finding that the General Counsel failed to prove that Project Manager Sidney Jackson is a statutory supervisor, but we disavow the judge’s reliance on Hobby Lobby Stores, Inc., 363 NLRB 1965, 1965 fn. 2 (2016), vacated and remanded to the Board in Commit- tee to Preserve the Religious Right to Organize v. NLRB, Case 16-2297 (7th Cir. June 28, 2018) (unpub.). Instead, we rely on Kimtruss Corp., 305 NLRB 710, 711 (1991). We further note that there is no argument on exceptions that Jackson had apparent authority to act on behalf of the Respondent. Finally, we adopt the judge’s dismissal of the Sec. 8(a)(3) and (1) al- legations regarding employees Powers and Walters. In dismissing these allegations, the judge found that the General Counsel failed to sustain her initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB adopt the recommended Order as modified and set forth in full below.3 AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 3: 3. The Respondent, by Ryan Lewis, violated Section 8(a)(1) on September 24, 2021, by instructing employ- ees that they had to wear the company T-shirts while working, rather than union T-shirts. ORDER The Respondent, Flow Service Partners Op-Co, LLC d/b/a Perfection Heating, Air Conditioning, and Refriger- ation, LLC, Evansville, Indiana, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Instructing employees that they had to wear com- pany T-shirts while working, rather than union T-shirts. (b) 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 after service by the Region, post at its facility in Evansville, Indiana, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983). We find it unnecessary to pass on the judge’s finding in this regard be- cause we agree with his further finding that even assuming the General Counsel sustained her initial burden under Wright Line of demonstrating that the union activity of Powers and Walters was a motivating factor in the decision to lay them off, the Respondent nevertheless met its Wright Line defense burden of demonstrating that it would have laid them off because of a lack of work even in the absence of their union activity. 3 We shall amend the judge’s conclusions of law and modify his rec- ommended Order to conform to the violation found, and we shall substi- tute a new notice to conform to the Order as modified. 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 representative, shall be posted by the Respondent and maintained for 60 days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily com- municates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facilities involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since September 24, 2021. (b) Within 21 days after service by the Region, file with the Regional Director for Region 25 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. December 19, 2023 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, 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 vi- olated 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 ac- tivities. WE WILL NOT instruct you that you must wear company T-shirts while working, rather than union T-shirts. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. FLOW SERVICE PARTNERS OP-CO, LLC, D/B/A PERFECTION HEARING, AIR CONDITIONING, AND REFRIGERATION LLC The Board’s decision can be found at https://www.nlrb.gov/case/ 25-CA-292574 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940 Raifael Williams, Esq., for the General Counsel. Neil E. Gath, Esq. (Gath Law Office), of Indianapolis, Indiana, for the Charging Party. Steven T. Clark, Esq. (Stoll Keenon Ogden PLLC), of Louisville, Kentucky, for the Respondent. DECISION CHARLES J. MUHL, Administrative Law Judge. The General Counsel’s complaint in this case alleges that Perfection Heating, Air Conditioning, and Refrigeration LLC (the Respondent) laid off employees Travis Powers and Kaleb Walters due to their un- ion and protected concerted activity in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. The Re- spondent’s general manager, Ryan Lewis, hired the two as in- stallers on August 6, 2021, to assist with ongoing and scheduled HVAC installation work. Lewis hired them knowing that Pow- ers and Walters were employed by Sheet Metal Workers Local 20 (the Union) as organizers and the Respondent was a nonunion company. On September 24, 2021, Powers and Walters first wore a shirt with a union insignia on the front and the words FLOW SERVICE PARTNERS OP-CO, LLC D/B/A PERFECTION HEATING, AIR CONDITIONING, AND REFRIGERATION, LLC 3 “Union Organizer” on the back while working. Lewis responded by telling Walters that the two of them needed to wear the com- pany uniform.. However, Powers and Walters did wear the un- ion shirt again the next workday, and continued to wear it on most workdays thereafter, without further incident. In late No- vember/early December, the Respondent’s installation workload began decreasing as winter approached. On December 14, nearly 3 months after the employees first wore a union shirt to work, Lewis laid off Powers and Walters, explaining that the layoffs were due to the lack of work. As will be discussed fully herein, I conclude that Lewis violated Section 8(a)(1) by in- structing employees that they had to wear the company shirt while working. Nonetheless, I also find that the Respondent did not harbor animus towards the union activity of Powers and Wal- ters. Even if it did, the Respondent established that Powers and Walters would have been laid off absent their union activity due to the seasonal drop in work hours. Accordingly, I conclude that the layoffs were lawful.1 On January 18 and 19, 2023, I heard this case in person in Henderson, Kentucky. On February 23, 2023, the General Coun- sel, the Charging Party, and the Respondent filed posthearing briefs, which I have read and carefully considered. On the entire record, I make the following findings of fact and conclusions of law.2 FINDINGS OF FACT ALLEGED UNFAIR LABOR PRACTICES I. BACKGROUND In October 2015, Ryan Lewis formed Perfection Heating, Air Conditioning, and Refrigeration, LLC. The Respondent is en- gaged in the business of the installation and service of commer- cial and residential HVAC equipment. It operates the business out of a shop in Evansville, Indiana. Lewis has been the 1 On September 14, 2022, the General Counsel, through the Regional Director for Region 25 of the National Labor Relations Board (the Board), issued a complaint against Flow Service Partners Op-Co LLC d/b/a Perfection Heating, Air Conditioning & Refrigeration, LLC (the Respondent) in Cases 25–CA–292574 and 25–CA–293162. The com- plaint was premised upon unfair labor practice charges filed by Sheet Metal Workers, Air, Rail, and Transportation Workers Local Union No. 20 a/w International Association of Sheet Metal, Air, Rail, and Trans- portation Workers (the Union) on March 21 and 28, 2022. On September 28, 2022, the Respondent filed an answer to the complaint denying the substantive allegations and asserting numerous affirmative defenses. In its answer, the Respondent admitted, and I so find, that, at all material times, it was an employer within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act). At the hearing, the Respondent stipulated, and I so find, that, at all material times, the Union was a labor organization within the meaning of Sec. 2(5) of the Act and Lewis was a Section 2(11) supervisor and 2(13) agent. (Tr. 8–10.) 2 In order to aid review, I have included citations to the record in my findings of fact. The citations are not necessarily exclusive or exhaus- tive. My findings of fact are based upon consideration of the entire rec- ord. In assessing witnesses’ credibility, I primarily relied upon witness demeanor. I also have considered the context of their testimony, the quality of their recollections, testimonial consistency, the presence or ab- sence of corroboration, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that Respondent’s general manager since the company’s inception. He operates the business day-to-day. Lewis’ job duties include hiring and firing employees; estimating project bids; overseeing the sheet metal shop; addressing marketing, legal, and account- ing issues; and acting as office manager. For hiring, firing, layoffs, and recalls, Lewis is the sole decision-maker. The Respondent employs estimators, installers, sheet metal fabricators, service technicians, dispatchers, and accounting em- ployees. In August 2021, the Respondent had 51 employees. They included two fabricators, 14 service technicians, and 27 in- stallers. The Respondent’s employees are not represented by a union.3 At material times, Sidney Jackson was an estimator and pro- ject manager for the Respondent. His estimator job duties in- cluded estimating costs for commercial HVAC properties and trying to obtain business for the Respondent. As project man- ager, he would manage jobs that were awarded to the Respondent from his bids. That included ordering equipment, going to meet- ings with customers and general contractors, and checking on jobsites to make sure work was being capably performed. When managing projects, Jackson would tell employees which jobs to perform when the employees came to the jobsite each week. He made those decisions by evaluating the work that needed to be done and the skill sets of the employees. Jackson also at times would tell employees to work overtime due to the needs of the project without asking or telling Lewis. Once every quarter, Jackson would recommend to Lewis that a certain employee be assigned to a specific jobsite. Lewis followed that recommenda- tion about half the time. During the course of his more than a year working for the Respondent, Jackson recommended indi- viduals to Lewis for hire approximately a dozen times. Lewis hired at least three of the individuals whom Jackson recom- mended.4 may be drawn from the record as a whole. See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom. 56 Fed.Appx. 516 (D.C. Cir. 2003). Of course, credibility findings need not be all-or-nothing propositions. Indeed, nothing is more common in judicial decisions than to believe some, but not all, of a witness’s testimony. Daikichi Sushi, supra at 622; Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008) (citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds 340 U.S. 474 (1951)). My specific credibility determinations are detailed in the findings of fact. 3 Tr. 19–30, 55. In February 2021, Lewis sold the Company to Flow Service Partners Op-Co, LLC, a holding company for an investment firm. Lewis went from 100-percent owner of the initial company to a 7– to-8-percent owner of the holding company. Flow Service Partners owns 4 HVAC companies. Lewis remained the Respondent’s general manager after the sale. He also added the title of Vice President of HVAC Oper- ations for the holding company. 4 Tr. 31–34, 38, 40–41, 45–46, 83, 104–108, 114–115, 199–204. In the complaint, the General Counsel alleged that Jackson was a Section 2(11) supervisor and 2(13) agent. In its answer, the Respondent stated that Jackson had been a supervisor and agent “at some material times” and “for some purposes.” At the hearing, the Respondent contested Jack- son’s status as a supervisor and agent and the parties presented evidence on that legal question. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 On June 23, 20215, Tony Young, an organizer with the Union, sent a letter to Lewis asserting that the Respondent was failing to pay area standards for sheet metal workers at two jobsites in Evansville. Young also stated the Union intended to “inform the public of your conduct, and its impact on our members” via “peaceful picketing” unless the Respondent brought its wages and benefits in line with the area standards. Lewis called Young on that same date and told him the Union was off on its claims. On July 1, an attorney for the Respondent sent a response letter to Young. The attorney stated that the Union’s claims were false. The attorney warned that, if the Union did not publish accurate information based on facts, the Respondent would not hesitate to pursue available legal remedies.6 II. THE RESPONDENT HIRES TWO KNOWN UNION ORGANIZERS AS HVAC INSTALLERS IN AUGUST 2021 Unsurprisingly, HVAC installation work in Evansville for commercial or residential new construction is seasonal. Antici- pating a summer push in 2021, Lewis hired four new installers at the end of April/beginning of May. In July, Lewis hired three additional installers.7 On August 2, Travis Powers, a member of and an apprentice with the Union, visited the Respondent’s shop and requested a job application from an office staff member. At the time, Powers was wearing a shirt with “Union Organizer” on it. On the appli- cation, Powers listed the Union as his employer and organizer as his position. He also wrote down his years of experience work- ing in HVAC. As he filled out the application, Powers was ap- proached by Jackson, the estimator/project manager. Jackson knew Powers, including that he was a union member and appren- tice. Jackson laughed at Powers’ shirt and took a picture of it. Jackson then took Powers for a tour of the facility. Thereafter, Jackson recommended to Lewis that he hire Powers. The Re- spondent had a large job scheduled in September at a facility of the shipping company DHL. Given that project, Jackson said he needed the manpower.8 On August 4, Kaleb Walters, another member of and an ap- prentice with the Union, similarly went to the Respondent’s fa- cility, then filled out and submitted a job application for HVAC installer. Walters also put down on his application that he was an organizer for the Union. He likewise wore a shirt with “Union Organizer” on the front of it.9 On August 7 or 8, Lewis spoke to Powers by telephone. He asked Powers about his skills and job experience. Lewis told Powers that the Respondent needed some help for the summer. 5 All dates hereinafter are in 2021, unless otherwise specified. 6 GC Exhs. 2 and 3; Tr. 242–243. 7 GC Exh. 4; Tr. 342. One of the installers hired in April only worked for 2 weeks. Two of the installers hired in July were discharged in Sep- tember and October due to performance issues and/or attendance. (GC Exhs 4, 6.) 8 Tr. 59–61, 116–117, 180–181, 213–214, 324, 339. 9 Tr. 125–126. 10 Tr. 59–60, 75, 101, 127, 156, 181, 214, 273–277; GC Exh. 4. 11 Tr. 128–129, 182–183. On March 27, 2023, the Respondent filed a motion with me to correct the transcript regarding what Lewis told Pow- ers and Walters about the work shirts. On April 4, 2023, the General Counsel and the Charging Party filed oppositions to the motion. On He offered Powers a job and Powers accepted. Powers then asked Lewis if he would be interested in hiring his friend Kaleb Walters. Lewis said that, if Walters had the same skill set as Powers, Lewis would be open to it. Lewis called Walters that day as well. He offered Walters a job and Walters accepted. Lewis was aware that Powers and Walters were employed by the Union as organizers when he hired them. When speaking to them about being hired, Lewis told Powers and Walters that they were needed on an upcoming, larger job at a DHL facility. He also said they were going to have a big press for the next few months with a lot of jobs hitting at the same time. He said the Respondent was struggling to man the jobs and would appreciate their help in getting over the hump. Both Powers and Walters told Lewis they were interested because they would receive dou- ble pay from the Respondent and the Union.10 On August 10, Powers and Walters began their employment with the Respondent. Lewis met them on the jobsite. He gave them three shirts apiece with “Perfection Heating and Cooling” on them. When doing so, Lewis told the two that he expected them to wear it while on the job because he wanted them to look professional.11 III. POWERS’ AND WALTERS’ CONVERSATIONS WITH OTHER EMPLOYEES ABOUT THE UNION From their date of hire through September 23, Powers and Walters had a number of conversations with other individuals about the Union. On August 11, Jackson told Powers and Wal- ters about what Jackson felt were better ways for them to recruit people to the Union. He also told them that the Respondent sub- contracted to union companies and bought union-made products. On August 13 or 18, a coworker told Powers and Walters that he previously had been a union apprentice for a company that was no longer around. On August 21, Powers and Walters told a coworker that they were union and had some experience. The coworker responded by telling them about problems with the work that had been done by employees of the Respondent in the past. On August 24 and again on September 14, a coworker told Powers and Walters that he missed the Union’s benefits and that he would not mind if the Respondent went union because he would get those benefits.12 IV. UNION REPRESENTATIVES VISIT THE RESPONDENT’S DHL JOBSITE ON SEPTEMBER 23 On September 21, the Respondent’s job at the DHL facility began. On September 23, Young and two other union represent- atives visited that jobsite at which Powers and Walters, among April 9, 2023, the Respondent filed a reply brief in support of the motion. Following receipt of the Respondent’s motion, I contacted the official court reporter in this case and asked him to again listen to the audio re- cording of Lewis’s testimony to confirm whether it was accurate or not. The court reporter advised me that the original transcript was in error and that Lewis had stated he expected Powers and Walters to wear the com- pany shirt because he wanted them to look professional. Accordingly, I grant the Respondent’s motion. See Spartus Corp., 195 NLRB 134, 137 fn. 1 (1972). The court reporter has issued a revised transcript containing the corrected testimony. 12 Tr. 129–133, 184–190. The record contains almost nothing con- cerning what, if anything, Powers and Walters said to these individuals. FLOW SERVICE PARTNERS OP-CO, LLC D/B/A PERFECTION HEATING, AIR CONDITIONING, AND REFRIGERATION, LLC 5 others, were performing the HVAC install. The representatives spoke to a security guard who allowed them to enter the jobsite. The representatives then conversed with Respondent employees Kyler English and Blake Mitchell about coming back into the Union. English formerly was a member. Young discussed the advantages of the Union compared with nonunion companies. At one point, Young picked up a piece of duct work and said “this ain’t fucking smack approved” and tossed it to the ground. Young also asked English about a bracelet English was wearing. English said it was for a buddy’s sister that had passed away from cancer. Young responded that his neighbor down the road had cancer and asked if he should have a bracelet made for her.13 English then called Lewis and reported what was going on. Lewis texted one of the union representatives that they needed to leave the jobsite because DHL had extensive safety protocols there. (DHL has TSA shipments going through that warehouse.) Not receiving a response, Lewis drove to the facility and met with the representatives. They initially exchanged profanities. Lewis told them they could not be onsite. Young said he had a right to support his members. Lewis said that might be, but it was a TSA facility with additional security protocols. Young responded that a security guard had let them in. Lewis said the guard may have but they still could not be there. He also told the representatives that their being overly aggressive with the em- ployees was uncalled for. Young again responded it was his right. Lewis then said they could go to 20 different jobsites the Respondent had around town and they could talk to his guys be- cause it was not a big deal. He said they could go to one that was not an operating business and would not create drama. Lewis asked them, if they were harassing his guys on jobs, should he start harassing the Union’s guys on jobs? He said they could be more professional than that and this was not the right way of do- ing things. Lewis said he was open to competition and the rep- resentatives were free to call or visit his employees. Young re- sponded that he had just put a contractor in Indianapolis out of business and he was going to get Lewis’ business next. Lewis told him to pack a lunch.14 V. POWERS AND WALTERS WEAR UNION ORGANIZING SHIRTS TO 13 Tr. 190–192, 243–244, 324. I credit English’s testimony concern- ing his conversation with Young. (Tr. 263–265.) Young repeatedly stated he did not recall statements attributed to him by English during the latter’s testimony, in particular statements that were unkind towards Eng- lish. (Tr. 247.) 14 I credit Lewis’s testimony where it conflicts with Young’s testi- mony about this conversation. Young stated he did not recall making the “put-you-out-of-business” comment to Lewis. (Tr. 244–245, 248, 316– 317.) 15 Tr. 66–67, 75, 136. 16 I credit Powers’s account of what Jackson said during the conver- sation. (Tr. 192–195, 214.) Walters essentially corroborated Powers’s testimony. (Tr. 137, 152, 156.) To the extent Walters’s testimony dif- fers, I attribute that to Walters’s overall poor and limited recall of the events of this case. I do not credit Jackson’s testimony where it conflicts with that of Powers or Walters. (Tr. 341, 347–348.) Jackson’s account of the conversation appeared scripted and not reflective of what really was said. In particular, I find it unlikely that, at Lewis’s request, Jackson merely asked Powers and Walters not to wear the union shirts. I also WORK ON SEPTEMBER 24 The next day while working at the DHL jobsite, Powers and Walters both wore shirts stating “Union Organizer” on the back with a Local 20 insignia on the front. It was the first time the two had worn a union shirt at work on a Respondent jobsite.15 When Jackson saw the two with the union shirts on, he again laughed. Jackson then told them to wear the Perfection shirt the next time they worked, because he did not want them to lose the good thing they had going on with making all this money. Nei- ther Powers nor Walters removed their union shirts after Jackson spoke with them.16 Jackson then called Lewis and told him about Powers and Walters wearing union shirts. Lewis called Walters and asked him what was up with the shirts and whether he knew the drama the shirts caused. Walters asked Lewis what he was talking about. Lewis responded that Jackson told him that he and Pow- ers had union organizer shirts on. Walters said that they did. Lewis then said he thought they had talked about wearing com- pany uniforms when he gave the uniforms to them on their first workday. Walters responded that English did not have a Perfec- tion shirt on. Lewis said that English’s actions were not Walters’ concern and Lewis would handle it. He added that Powers and Walters needed to wear the uniform. Walters agreed to do so the next workday. Lewis then called English, who confirmed that he was not wearing a Perfection shirt. Lewis told English that he was expected to do so. English responded that it would not happen again. That evening, Walters called the Respondent’s office and asked for a copy of the employee handbook.17 VI. LEWIS VISITS POWERS AND WALTERS AT THE DHL JOBSITE ON SEPTEMBER 27 On September 27, Lewis met Powers and Walters on their jobsite. The two again were wearing the union shirts. Lewis said to Walters, “Seriously?” He said he thought Walters had told him he was going to wear his Perfection shirt. Walters said he would wear the Perfection shirt if Lewis would show him the Respondent’s policy in the employee handbook that Walters had signed. Lewis responded that the Company did not have a hand- book and Walters never signed for one. Lewis then asked Wal- ters whether the shirt was him or was something the Union asked note that Jackson claimed that Powers and Walters had been told before to wear the company shirts. He did not say who told them this or provide any foundation for the source of this information. In fact, the record does not reflect that anyone had ever told them to wear the company shirts on jobsites. 17 I credit Lewis’s account of the conversation between him and Wal- ters where the testimony conflicts. (Tr. 137–139, 152, 282–284, 287.) Walters’s testimony about the conversation was riddled with qualifiers and unconvincing. In particular, I do not credit Walters’s testimony that Lewis told him he would be disciplined for wearing the union shirt. Lewis has not formally disciplined any employee of the Respondent in the company’s history. (Tr. 281.) When warranted, he had conversations with employees to address any issues. I find that he did the same thing here. I further note that, according to Powers, Walters did not tell Powers that Lewis threatened to discipline the two. (Tr. 192–193.) Had Lewis made such a threat, Walters would be expected to inform Powers of the threat. Finally, I note that Lewis admitted he told Walters that Walters and Powers needed to wear the company uniform. (Tr. 282.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 him to do. Walters responded it was him. Lewis later asked Powers and Walters to go to lunch with him that day.18 At that lunch, Powers and Walters spoke about why the Re- spondent should become a union signatory contractor. Walters suggested ways the Union could benefit the Company, including by having a larger pool of qualified workers to hire. Lewis told them what he provides his employees is just as good or better than what the Union provides, in particular with respect to health insurance and paid days off. Lewis noted the Union’s pension funds were not doing well. Lewis also said that he could bid jobs better being nonunion. Lewis told Powers and Walters that they were good workers, but he did not like them wearing the union shirts.19 Powers and Walters wore their union organizer shirts to work on most days after September 27 without any further comment from Lewis.20 VII. THE UNION’S HANDBILLING OF THE RESPONDENT’S SHOP ON NOVEMBER 5 On November 5, the Union, including Young, put up an in- flated “Fat Cat” at the Respondent’s shop and handbilled. The handbill stated that the Company was no longer locally owned but instead was owned by a corporation in Texas. It further stated that the public should consider locally owned alternative businesses that paid their employees fair wages and benefits, provided formal training, required drug-free employees, and were not sending money out of state. Lewis and Young had a long conversation that day. Lewis again raised the concern that the Union’s national pension fund was not in great shape. Lewis told Young that the two had fundamental differences over whether the Company should become a union contractor. Later that same day, Lewis handed Young a copy of a letter from the Respondent’s attorney. The letter stated that the Union’s hand- bill contained numerous “false accusations.” It also said the Company still had local ownership and pays its employees fair wages and benefits. The letter stated that further distribution of the flyer would be viewed as libel or slander and could result in legal action. After receiving the attorney’s letter, Young told Lewis, in the interest of fair play, the handbillers would pack up and leave.21 On November 9, Powers spoke to an employee of a general contractor on a jobsite while Powers was wearing his union or- ganizing shirt. The individual told Powers he did not understand why the Respondent would not just go union so they would have the hiring hall to pull people from. On November 16, Powers 18 Tr. 140, 195, 284–285. 19 Tr. 142–143, 196–198, 215, 285–287, 20 Tr. 75. 21 Tr. 85–86, 111–113, 198, 245–246; GC Exh. 5; CP Exhs. 1 and 2. 22 Tr. 205–208. 23 The findings of fact in this section are based on Lewis’s testimony, which I credit, concerning his conversation with Beck. (Tr. 295–296.) Lewis’s demeanor was earnest and sincere when testifying about the con- versation, rendering the testimony reliable. I do not credit Beck’s testi- mony where it conflicts with Lewis’s testimony. (Tr. 214, 220–222.) Most critically, Beck contended that he asked Lewis how business was and Lewis responded that it was great and he had all kinds of work lined up. He further claimed that Lewis asked him whether Powers’s and Wal- ters’s time trying to organize the Respondent’s employees was almost spoke to another employee of the Respondent, again while wear- ing his union organizing shirt. The individual told Powers he thought it was stupid that the Union was making him wear the shirt. Powers responded that the Union was not making him wear anything. The individual then said that he did not need a grown man to find him work, that he could find work on his own.22 VIII. LEWIS’ DECEMBER 7 CONVERSATION WITH UNION ORGANIZER JOHN BECK On December 7, then union organizer John Beck visited the Respondent’s shop. Beck had been a union member for a num- ber of years, but was working as a union organizer from July through December 2021. Beck told the employee at the front desk that he was John Beck, an organizer for Local 20. The em- ployee called Lewis and told him John Beck was there claiming to be a union organizer and asked Lewis if he wanted to talk to him. Not recognizing that name, Lewis walked down to the front desk. When Lewis first saw Beck, he recognized Beck as some- one who he previously met at a couple of family events. How- ever, Beck went by the name “Clay” at those events, not John. Lewis also realized that Beck was the individual who Lewis pre- viously had been told was visiting jobsites of the Respondent and talking badly about Lewis. He invited Beck to his office and the two spoke. After some small talk, Lewis asked Beck what he was doing there. Beck told him he was a union organizer and wanted to talk to him about signing his company up. Lewis told Beck that he was not the guy (a business agent) that such a con- versation happens with. Thinking that Beck was a third-year ap- prentice organizer like Powers and Walters, Lewis asked Beck how long he had been with the Union. Beck responded 6 years, not 3. Feeling that Beck was not in a union position at the level of a business agent where a conversation would be warranted, Lewis ended their talk.23 IX. THE RESPONDENT’S DECEMBER 14 LAYOFF OF POWERS AND WALTERS During their 4 or so months of employment, Powers and Wal- ters worked on commercial installation jobs. At the end of No- vember/beginning of December, Lewis had difficulty on multi- ple occasions in finding work for Powers and Walters in that sec- tor. On two occasions in that same timeframe, Lewis also ob- served mistakes in the work of Powers and Walters on two com- mercial jobs. Additional work had to be done to correct the er- rors. Having seen the quality of their prior work, Lewis believed up. When Beck said that the Union did not have any set time limit on it, Lewis allegedly responded “Well, maybe Perfection will get slow and…we won’t need them anymore.” Beck provided this testimony in a lengthy, narrative answer during which he frequently paused, often at critical times. The testimony appeared scripted and rehearsed, to the point of being too good to be true. Moreover, as will be discussed in the next section, Lewis did lay off Powers and Walters just 4 days after this conversation and told them it was due to a lack of work. Based on my observation of Lewis at the hearing, I find it nonsensical that he would volunteer to a union organizer that, if the Union continued its organizing drive indefinitely, he was going to falsely claim work had gotten slow and Powers and Walters had to be laid off, then take those exact steps only 4 days later. FLOW SERVICE PARTNERS OP-CO, LLC D/B/A PERFECTION HEATING, AIR CONDITIONING, AND REFRIGERATION, LLC 7 that the two intentionally were making the errors.24 When the commercial work dried up, Lewis asked Kevin Smith, an estimator/project manager for the Respondent who worked on the residential side, if he had any work for Powers and Walters. Smith said he did, related to the construction of two new homes. Lewis moved Powers and Walters to those res- idential jobs. At one point, Smith observed that Powers and Wal- ters made errors in the work they were doing and left debris in a crawl space. Smith called Lewis and informed him of the issues. They sent Powers and Walters back to correct the errors. After the two jobs were completed, Lewis asked Smith if he had any more work to give Powers and Walters. Smith told Lewis he did not.25 On December 10, Lewis texted Powers and Walters and said he did not have any work for them that day. He scheduled a meeting with them for the following week. On December 14, Lewis met with the two and told them he was laying them off because work was slow. Lewis said he appreciated the help and that they needed to give their tools back.26 The Respondent had 27 installers working in August, but that number went down to 18 in December. Among the nine install- ers no longer employed in December, five of them, including Powers and Walters, had been hired back in July and August. When Lewis laid off Powers and Walters, the only other installer he retained who had been hired in the summer of 2021 was Dustin Everson. Lewis hired Everson on July 6, 2021, about a month before Powers and Walters. Lewis retained Everson for two reasons. First, he was an earlier hire. Second, Everson worked residential and his foreman thought he was a good worker.27 The average monthly total work hours28 of the Respondent’s installers from August 2021 to March 2022 were: 24 Tr. 159, 290–294, 342. Walters conceded that, near the end of their time working for the Respondent, Powers and Walters were struggling to get work, with Lewis not having any work for them on some days. (Tr. 144.) 25 Tr. 216, 252–259, 294. Walters testified that he agreed with Lewis that one of the jobs needed to be cleaned up. (Tr. 154.) 26 Tr. 67, 76, 144–145, 208–209, 297–98. 27 Tr. 28–31, 311, 334; GC Exhs. 4, 6. GC Exh. 4 is a new hire list for the Respondent for material time periods. It shows that the Respond- ent hired five new installers, including Powers and Walters, from July 5 through August 11. GC Exh. 6 is an exit list for the Respondent for ma- terial time periods. It shows that, as of December 14, the Respondent no longer employed four installers, including Powers and Walters, among the five hired in July and August. The chart does not have the job titles of the other exiting employees. Nonetheless, given Lewis’s uncontra- dicted testimony that his installer crew dropped a total of nine installers from August to December, I infer that the other employees listed on GC Exh. 6 who were no longer employed as of the layoffs of Powers and Walters likewise were installers. The list shows a total of 11 employees exiting from August 17 through December 14. Two of the listed em- ployees, Patrick Beyers and Chris McManus, were fabricators who re- signed. Because the number of office employees remained the same and the Respondent did not lose any service technicians, the remaining listed nine employees must be installers. AUGUST 2021 937 SEPTEMBER 2021 872 OCTOBER 2021 1045 NOVEMBER 2021 820 DECEMBER 2021 778 JANUARY 2022 627 FEBRUARY 2022 618 MARCH 2022 838 Legal Analysis I. IS SIDNEY JACKSON A SECTION 2(11) SUPERVISOR? The General Counsel’s complaint alleges that Sidney Jackson was a supervisor within the meaning of Section 2(11) of the Act. In its answer, the Respondent effectively denied the allegation. Section 2(11) of the Act defines "supervisor" as any individ- ual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, re- ward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. An individual need possess only one of the enumerated indicia of authority in order to be a statutory supervisor, so long as the exercise of such au- thority is carried out in the interest of the employer and requires the use of independent judgment. Sheraton Universal Hotel, 350 NLRB 1114, 1115 (2007) (citations omitted). The burden of proving supervisory status rests with the party asserting it, here the General Counsel. See id. (citing NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 711-712, 121 S. Ct. 1861, 149 L. Ed. 2d 939 (2001)). The General Counsel argues that Jackson is a 2(11) supervisor because he had authority to assign work to employees and re- quire them to work overtime.29 In Oakwood Healthcare, Inc., 28 I computed these monthly averages from the weekly hours totals of installers contained in R. Exh. 2. A week was included in the month of the date listed on the weekly figure, i.e., the week of December 5, 2021, was included in the December monthly average. Thus, the monthly av- erages were derived from either 4 or 5 week periods. In February 2022, Powers and Walters returned to the Respondent’s shop. They asked and received job applications. However, the record evidence is insufficient to establish that they submitted those applica- tions to the Respondent. In any event, I find their February 2022 conduct irrelevant to the question of whether the Respondent’s layoffs of Powers and Walters were unlawful. Were a credibility determination necessary regarding the February 2022 events, I would credit Lewis’s testimony. (Tr. 313–314) where it conflicts with that of Powers (Tr. 210–211) and Walters (Tr. 145–146). Lewis testified that he asked the two what was up and they told him they were reapplying for work. Lewis said he thought their organizing time was up in December. They told him they were still going. Lewis asked if the Union still was paying them, and they said yes. Lewis responded that work had not picked up yet, but they were welcome to apply. 29 The General Counsel does not rely upon any additional legal theo- ries to establish Jackson’s supervisory status. The General Counsel also makes no argument concerning why Jackson is a Sec. 2(13) agent as al- leged in the complaint. Although the Charging Party advances other le- gal theories to establish Jackson’s supervisory status, the General DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 348 NLRB 686, 689, 693 (2006), the Board explained the mean- ing of “assign” and “independent judgment” as follows: [W]e construe the term "assign" to refer to the act of designat- ing an employee to a place (such as a location, department, or wing) appointing an employee to a time (such as a shift or over- time period), or giving significant overall duties, i.e., tasks, to employee. That is, the place, time, and work of an employee are part of his/her terms and conditions of employment. The assignment of an employee to a certain department (e.g., housewares) or to a certain shift (e.g., night) or to certain sig- nificant overall tasks (e.g. restocking shelves) would generally qualify as "assign" within our construction. However, choosing the order in which the employee will perform discrete tasks within those assignments (e.g. restocking toasters before coffee makers) would not be indicative of exercising the authority to "assign." The authority to effect an assignment . . . must be independent [free of the control of others], it must involve a judgment [form- ing an opinion or valuation by discerning and comparing data], and the judgment must involve a degree of discretion and arise above the 'routine or clerical.'" (Internal citations omitted). The record evidence concerning Jackson’s alleged supervi- sory status is quite limited and conclusory. To begin, Jackson’s job duties as an estimator did not include any supervisory func- tions. He put estimates together so the Respondent could bid on work from customers. Many of Jackson’s duties as project manager likewise were not supervisory. Those duties included ordering equipment, meeting with customers and general contractors, and checking on jobsites to make sure work was being capably performed. What Jackson did if work was not being capably performed is not established in the record. Even if he directed employees to redo work that was done incorrectly, that fact would not establish supervisory status based on assignment of work. Pacific Beach Corp., 344 NLRB 1160, 1160 (2005). The remaining evidence on assignment of work is that Jackson would tell employees which job tasks to perform on a weekly basis. He made those decisions by matching the work that needed to be done with the skill sets of the available employees. How Jackson did this is unknown, as no specific examples of such assignments were of- fered. The vague and general testimony is insufficient to estab- lish supervisory status. CHS, Inc., 357 NLRB 514, 514 fn. 3 (2011). In any event, making work assignments by taking note of employees’ skills and experience with respect to a particular task, without more, does not establish that the assignments were made with independent judgment. Croft Metals, Inc., 348 NLRB 717, 722 (2006) (employer failed to meet its burden of proof as to independent judgment where it “adduced almost no evidence Counsel controls the legal theories supporting the complaint allegations. See Hobby Lobby Stores, Inc., 363 NLRB No. 195, slip op. at fn. 2 (2016). 30 Jackson also gave conflicting testimony on overtime, saying at an- other point that he discussed overtime with Lewis before approving it. (Tr. 118.) regarding the factors weighted or balanced by the lead persons in making production decisions and directing employees”); see also Armstrong Machine Co., 343 NLRB 1149, 1149 (2004). Moreover, installers work on HVAC installation jobs presuma- bly involves similar tasks irrespective of jobsites. Jackson’s des- ignation of an employee to perform a particular function would be self-evident because it was based on known skills. Assigning employees according to their known skills is not evidence of in- dependent judgment. Shaw, Inc., 350 NLRB 354, 355 (2007); Topside Construction, Inc., 329 NLRB 886, 895 (1999); Volair Contractors, Inc., 341 NLRB 673, 675 fn. 10 (2004). As to overtime, Jackson granted overtime unilaterally when a project called for it. Again, no specific examples of this were offered. In addition, the frequency with which this occurred was not established, because Jackson stated only than that there were “occasions” where he did this. Thus, even if Jackson had this authority, the record establishes nothing more than that he exer- cised it so sporadically that it is not an indicium of supervisory status. Artcraft Displays Inc., 262 NLRB 1233, 1234 fn. 7 (1982).30 The General Counsel and Charging Party argue that other fac- tors establish Jackson’s supervisory status. One factor is that Jackson was paid based upon the amount of work he brought in, which differed from installers’ hourly pay. Another factor is that, if Jackson is not deemed a supervisor, the ratio of supervi- sors to employees would increase. However, where, as here, the evidence does not establish that Jackson possessed any of the primary indicia of Section 2(11) supervisory status, such second- ary indicia cannot establish supervisory status. See, e.g., Hous- ner Hard-Chrome of Kentucky, Inc., 326 NLRB 426, 427 (1998). Accordingly, I find the record evidence insufficient to estab- lish that Jackson was a Section 2(11) supervisor.31 II. DID JACKSON’S STATEMENTS REGARDING UNION SHIRTS VIOLATE SECTION 8(A)(1)? The General Counsel’s complaint alleges that the Respondent, by Jackson, violated Section 8(a)(1) on September 24. The first allegation is that Jackson instructed employees that they could not wear shirts with union insignia but rather had to wear shirts with the Respondent’s name. The second allegation is that Jack- son threatened employees with discharge if they continued to wear shirts with union insignia. Having found that Jackson is not a Section 2(11) supervisor, his statements, even if unlawful, cannot be attributed to the Respondent. Thus, I dismiss these allegations. However, in case a reviewing body disagrees with my conclusion on Jackson’s supervisory status, I will address the merits of the allegations. To summarize the credited evidence, when Jackson saw Pow- ers and Walters wearing union shirts on September 24, he laughed but then told them to wear a Perfection shirt the next time they worked. He told them to do that because he did not want them to lose the good thing they had going on with making 31 The General Counsel cites to no Board decision supporting the conclusion that, under the specific circumstances present in this case, Jackson was a Sec. 2(11) supervisor. FLOW SERVICE PARTNERS OP-CO, LLC D/B/A PERFECTION HEATING, AIR CONDITIONING, AND REFRIGERATION, LLC 9 all this money. That was a reference to being paid by both the Respondent and the Union while they were working for the Re- spondent. Jackson’s first statement was a directive to the two employees to wear the company shirt, not a union shirt, to work. However, it is well established that employees have a statutorily protected right to wear union insignia in the workplace, including buttons, shirts, and other articles of clothing. P.S.K. Supermarkets, 349 NLRB 34, 35 (2007); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945). Moreover, Jackson’s comment about the employees losing the “good thing” and “all this money” was a veiled threat that the two would be discharged if they continued wearing union shirts and lose their double pay. Such a threat, even if implied, is unlawful. See, e.g., Overnite Transportation Co., 332 NLRB 1331, 1335 (2000) (supervisor’s comment to employee who was known union supporter that employee needed to be concerned about his future because it was “real iffy” was an unlawful implied threat of discharge); Concepts & De- signs, Inc., 318 NLRB 948, 954–955 (1995) (employer presi- dent’s comment to employee, on a payday after employee’s check went missing, that “it would sure be nice to get one of those every week” and that employee’s daughter would like to know that there would be money for food and clothing was im- plied threat of discharge). Thus, if Jackson was a Section 2(11) supervisor, his comments to Powers and Walters violated Sec- tion 8(a)(1). III. DID LEWIS’ STATEMENTS REGARDING UNION SHIRTS VIOLATE SECTION 8(A)(1)? The General Counsel’s complaint also alleges that the Re- spondent, by Lewis, violated Section 8(a)(1) on September 24. The first specific allegation is that Lewis instructed employees that they could not wear shirts with union insignia but had to wear shirts with the Respondent’s name on them. The second specific allegation is that Lewis threatened employees with dis- cipline if they continued to wear the union shirts. After learning of Powers and Walters wearing union shirts on September 24, Lewis told Walters that they needed to wear the Respondent’s uniform. Lewis also told English that he was ex- pected to wear his company shirt. For the same reasons dis- cussed above concerning Jackson’s statement to employees that they had to wear the company shirt when working, I find Lewis’ statements violated Section 8(a)(1).32 IV. DID THE RESPONDENT’S LAYOFFS OF POWERS AND WALTERS VIOLATE SECTION 8(A)(3) AND (1)? Finally, the General Counsel’s complaint alleges that the Re- spondent discharged Powers and Walters due to their union and protected concerted activity in violation of Section 8(a)(3) and (1) of the Act. A. Legal Framework In determining whether an employee's discharge is unlawful, the Board applies the mixed motive analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 32 Based upon my credibility determination discussed in the findings of fact, I concluded that Lewis did not tell Walters that he and Powers were going to be disciplined for wearing the union 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The framework established by the Board in Wright Line is inherently a causation test. Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 7 (2019), quoting Wright Line, supra, 251 NLRB at 1089 (“[The Board’s] task in resolving cases alleging violations which turn on motivation is to determine whether a causal relationship existed between employees engag- ing in union or other protected activities and actions on the part of their employer which detrimentally affect such employees’ employment.”). To prove a discriminatory discharge under Wright Line, the General Counsel must demonstrate by a preponderance of the evidence that the employee's protected conduct was a motivating factor in the employer's decision. SBM Site Services, LLC, 367 NLRB No. 147, slip op. at 2 (2019). The General Counsel satis- fies the initial burden by showing (1) the employee's protected activity; (2) the employer's knowledge of that activity; and (3) the employer's animus. Alternative Energy Applications Inc., 361 NLRB 1203, 1205 (2014). Proof of discriminatory motiva- tion can be based on direct evidence or can be inferred from cir- cumstantial evidence based on the record as a whole. Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). A discriminatory motive may be established by: (1) the timing of an employer’s adverse action in relation to the employee’s protected activity; (2) statements and actions showing an employer’s general and specific animus; (3) the presence of other unfair labor practices; and (4) evidence that an employer's proffered explanation for the adverse action is a pretext. National Dance Institute–New Mex- ico, Inc., 364 NLRB 342, 351 (2016); Lucky Cab Co., 360 NLRB 271, 274 (2014). Pretext may be demonstrated by: (1) an em- ployer’s false reasons for an adverse action; (2) disparate treat- ment; (3) departure from past practice; (4) shifting explanations by an employer for an adverse action; and (5) the failure to in- vestigate whether the employee engaged in the alleged miscon- duct. ManorCare Health Services–Easton, 356 NLRB 202, 204 (2010); Windsor Convalescent Center, 351 NLRB 975, 984 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir. 2009); In- ter-Disciplinary Advantage, Inc., 349 NLRB 480, 509 (2007). If the General Counsel makes the initial showing, the burden shifts to the employer to prove that it would have discharged the employee even in the absence of the employee's protected activ- ity. Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). The employer cannot meet its burden merely by showing that it had a legitimate reason for the discharge; rather, it must demonstrate that it would have taken the same action in the ab- sence of the protected conduct. Roure Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). When the employer's stated reasons for its decision are found to be pretextual—that is, either false or not in fact relied upon—discriminatory motive may be inferred but such an inference is not compelled. Electrolux Home Prod- ucts, 368 NLRB No. 34, slip op. at 3 (2019). B. The General Counsel Did Not Meet the Initial Wright Line shirts. Accordingly, I dismiss the General Counsel’s complaint allega- tion in that regard. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Burden No dispute exists that Powers and Walters engaged in union activity of which the Respondent was aware. When Lewis hired Powers and Walters, he knew they were apprentices being paid by the Union to engage in organizing. Powers and Walters also wore union shirts at work on most days from September 24 until their layoffs on December 14. Lewis was aware of the shirts. However, the employees’ other union activities were limited and no evidence established that the Respondent was aware of them. Although Powers and Walters had conversations with other em- ployees where the union was mentioned, it was the other em- ployees, not Powers and Walters, who brought the union up on almost every occasion. The record is devoid of any statements that Powers and Walters made concerning the union, other than telling one employee that they were “union.” Furthermore, no supervisors were present when these conversations occurred. No additional evidence was presented of other organizing activities engaged in by Powers and Walters. As organizing campaigns go, this one had limited activity from the two employee organiz- ers. Nonetheless, the preponderance of the evidence is sufficient to establish employee union activity and employer knowledge. Where the General Counsel’s case is lacking is the Respond- ent’s alleged animus to Powers’ and Walters’ union activity. Lewis hired Powers and Walters knowing full well that they were union organizers. Although Lewis made one unlawful statement to Walters upon learning he was wearing a union shirt at work, Lewis did not thereafter prohibit Walters or Powers from wearing their union shirts while working. He also did not make any further comments to them about the union shirts. The timing of Lewis’ layoffs of Powers and Walters does not support a finding of a discriminatory motive. Lewis’ unlawful statement was made on September 24, some 2 1/2 months prior to the layoffs. The Respondent did not engage in any additional con- duct indicative of animus.33 The General Counsel argues that animus is established by the Respondent’s pretextual reason for discharging Powers and Wal- ters. Lewis asserted at the time of the discharges and at the hear- ing that they were due to lack of work. The General Counsel points to the fact that the number of weekly work hours for in- stallers was 821 the week that Powers and Walters were hired and 826 the week that they were laid off. Thus, the argument goes, the Respondent had no need to lay off Powers and Walters on December 14 because the total work hours were the same as when they were hired. Accepting this argument would require me to ignore signifi- cant evidence to the contrary substantiating Lewis’ assertion. First, looking only at the 2 weekly figures does not give an ac- curate, overall picture of installers’ work hours. Weekly totals could be skewed or inconsistent for any variety of reasons. But averaging out the figures on a monthly basis affords a more 33 Having discredited union organizer Beck’s testimony concerning Lewis’s alleged statements to him on December 10, the Respondent en- gaged in no further unlawful conduct during that time period. 34 In reaching this conclusion, I have considered and rejected the ar- guments from the General Counsel and the Union that the Respondent’s animus is established by Lewis’s repeated statements that he did not want to become a signatory to a union contract. Lewis is entitled to his opinion reliable picture. When averaged, the monthly average work hours were 937 in August, 872 in September, 1045 in October (after the DHL project began in late September), 820 in Novem- ber, 779 in December, 627 in January 2022, and 618 in February 2022. The difference in monthly average hours in August and December is significant. Moreover, those hours declined for four straight months beginning in November, before rebounding to 838 in March 2022. The decline from November through Feb- ruary 2022 is consistent with Jackson’s testimony that the Re- spondent’s HVAC installation business was seasonal. (Given Indiana winters, it also is a logical conclusion.) The decline also is consistent with Walters’ testimony that Lewis was having dif- ficulty finding him and Powers work at the end of November. Finally, the decline is consistent with Lewis’ credited assertion that the Respondent employed 27 installers in August but only 18 as of December after Lewis laid off Powers and Walters. Prior to laying the two off, Lewis found them additional work on the residential side of the business, when commercial installation work no longer was available. When considering the entirety of this evidence, pretext is not established. What is left is a lone Section 8(a)(1) statement by Lewis to Walters on September 24 that Powers and Walters had to wear a Perfection shirt when at work to be professional. I find this in- sufficient to establish the Respondent’s animus towards the pro- tected activity of Powers and Walters. Without such animus, the General Counsel has not met the initial Wright Line burden.34 Even if the burden was met, the Respondent established that it would have laid off Powers and Walters due to the decline in work hours during the winter months. As a result, the General Counsel’s complaint allegations relating to the Respondent’s layoffs of Powers and Walters are dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The Respondent, by Ryan Lewis, violated Section 8(a)(1) on September 24, 2021, by instructing employees that they had to wear the company uniform while working. 4. The above unfair labor practice affects commerce within the meaning of Section 2(2), (6), and (7) of the Act. 5. The Respondent has not violated the Act in the other man- ners alleged in the General Counsel’s complaint. REMEDY Having found that the Respondent engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. In particular, I shall order the Respondent to cease and desist from instructing employees that they were on his company becoming unionized and has a legal right under Section 8(c) to communicate his opinion. I also have considered and rejected the contention that animus is establish based on Lewis’s lawyer twice stating to the Union that the Respondent would sue the Union if it made false statements about the Company in its communications with the public. If the Union defamed the Respondent in its communications, the Respond- ent would have a legal right to sue the Union. FLOW SERVICE PARTNERS OP-CO, LLC D/B/A PERFECTION HEATING, AIR CONDITIONING, AND REFRIGERATION, LLC 11 required to wear shirts with the Respondent’s name on them while working. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended35 ORDER The Respondent, Flow Service Partners Op-Co, LLC d/b/a Perfection Heating, Air Conditioning, and Refrigeration, LLC, Evansville, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Instructing employees that they had to wear the company uniform while working. (b) 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 effectu- ate the policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cility in Evansville, Indiana, copies of the attached notice marked “Appendix.”36 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Re- spondent's authorized representative, shall be posted by the Re- spondent and maintained for 60 days in conspicuous places in- cluding all places were notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 24, 2021. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Regional Director attesting to the steps the Respondent has taken to comply. Dated, Washington, D.C., April 18, 2023. 35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 36 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT instruct you that you must wear the company uniform while working. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. FLOW SERVICE PARTNERS OP-CO, LLC, D/B/A PERFECTION HEARING, AIR CONDITIONING, ANDREFRIGERATIONLLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-292574 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 373 NLRB No. 4