Atomic Fire Protection, LLC

373 NLRB No. 109 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. Atomic Fire Protection, LLC and Sprinkler Fitters Local 281. Case 13–CA–305638 September 30, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX On December 11, 2023, Administrative Law Judge Sa- rah Karpinen issued the attached decision. The Re- spondent filed exceptions with supporting argument, and the General Counsel and Charging Party Sprinkler Fitters Local 281 (the Union) filed answering briefs. The Gen- eral Counsel and the Union also filed exceptions with supporting briefs, the Respondent filed an answering brief, and the General Counsel and the Union filed reply briefs. 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,1 and conclusions2 and to adopt the recommended Order as modified.3 1 The Respondent 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 preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In affirming the judge’s dismissal of the allegation that the Re- spondent misclassified employees as independent contractors in viola- tion of Sec. 8(a)(1), we note that no exceptions were filed to the judge’s analysis under The Atlanta Opera, Inc., 372 NLRB No. 95 (2023). We also decline the General Counsel’s and the Union’s requests for the Board to overrule Velox Express, 368 NLRB No. 61 (2019), and there- by find that the Respondent’s misclassification of employees violated Sec. 8(a)(1). Members Prouty and Wilcox would be open to reconsid- ering Velox Express in a future appropriate case where the record evi- dence establishes that the employees knew that their employer was classifying them as independent contractors. No exceptions were filed to the judge’s dismissal of the allegation that the Respondent created the impression of surveillance of employ- ees’ union and protected activities. In affirming the judge’s finding that the Respondent unlawfully in- terrogated employees about their union activities and sympathies, Member Kaplan relies only on Project Manager Peter Balac’s question- ing of employee William Hincks on October 4, 2022. He finds it un- necessary to pass on the other alleged interrogations because those findings would not affect the remedy. See Management Consulting, Inc. (MANCON), 349 NLRB 249, 249 fn. 2 (2007). Member Kaplan also affirms the judge’s finding that the Respondent violated Sec. 8(a)(1) when Balac told Hincks that he could not talk to other employ- ees about the Union, but he finds it unnecessary to pass on whether Balac’s additional statement that he “did not want the Union on [his] ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Atomic Fire Protection, LLC, Riverwoods, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following as paragraph 2(g). “(g) Post at its Riverwoods, Illinois facility copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic job” was also unlawful because it would not materially affect the reme- dy. 3 We deny the General Counsel’s and the Union’s requests for the Union to be allowed to choose qualified applicants to replace discrimi- natees William Hincks and Darrius Price if they decline reinstatement and the General Counsel’s additional request that the Respondent be ordered to send a letter of apology to Hincks and Price. We find that these remedies are neither appropriate nor necessary to remedy the Respondent's unfair labor practices. The judge appears to have inadvertently omitted a footnote from her proposed Order regarding the posting of the Notice to Employees. We correct this mistake. In addition, we amend the judge’s proposed remedy and recom- mended Order to provide for a union representative to be present at the notice reading, if the Union so desires, in accordance with the Board’s standard language when ordering a notice-reading remedy. See Gavi- lon Grain, LLC, 371 NLRB No. 79, slip op. at 2 (2022). In amending this portion of the judge’s order, we note that no party excepted to the judge’s decision to impose a notice-reading remedy based on the Re- spondent’s unlawful conduct. 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted and read within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial comple- ment of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted and read within 14 days after the facility reopens and a substantial complement of employees have re- turned to work. If, while closed or not staffed by a substantial com- plement of employees due to the pandemic, the Respondent is com- municating 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 electroni- cally 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 and Read by Order of the National Labor Relations Board” shall read “Posted and Read Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the no- tices 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 facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix” to all current and former employees employed by the Respondent at that facility at any time since September 26, 2022.” 2. Substitute the following as paragraph 2(h). “(h) Hold a meeting or meetings during work time at its facility in Riverwoods, Illinois, scheduled to ensure the widest possible attendance of employees, at which the attached notice marked “Appendix” will be read to em- ployees in English (and any other language ordered by the Regional Director) by Project Manager Peter Balac, in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or, at the Respondent’s option, by a Board agent in the presence of Peter Balac and, if the Union so desires, the presence of an agent of the Union.” Substitute the attached notice for that of the adminis- trative law judge. Dated, Washington, D.C. September 30, 2024 ______________________________________ Marvin E. Kaplan, Member ________________________________________ 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 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 coercively interrogate you about your union activities or support. WE WILL NOT tell you that you cannot work for us or any other non-union company if you are with the Union. WE WILL NOT tell you that we do not want a union and that you cannot speak to other employees about the bene- fits of organizing. WE WILL NOT fire you for engaging in union or other protected activities or because we believe you engaged in such activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Darrius Price and William Hincks immedi- ate and full reinstatement to their former jobs, or if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make Darrius Price and William Hincks whole for any loss of earnings and other benefits result- ing from their terminations less any net interim earnings, plus interest, and WE WILL also make Price and Hincks whole for any direct or foreseeable pecuniary harms suf- fered as a result of their terminations, including reasona- ble search-for-work and interim employment expenses, plus interest. WE WILL compensate Darrius Price and William Hincks for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 13, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay award to the appropriate calendar year(s), as well as a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. 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 Darrius Price and William Hincks, and ATOMIC FIRE PROTECTION, LLC 3 WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the unlawful employ- ment actions will not be used against them in any way. WE WILL hold a meeting or meetings during work time and have this notice read to you and your fellow workers by Project Manager Peter Balac, in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or, at our option, by a Board agent in the presence of Balac and, if the Union so desires, an agent of the Union. ATOMIC FIRE PROTECTION, LLC The Board’s decision can be found at http://www.nlrb.gov/case/13-CA-305638 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National La- bor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Elizabeth S. Cortez, Esq., for the General Counsel. Michael Holmes, Esq. and Cynthia A. Sauter, Esq., for the Re- spondent. Keith R. Bolek, Esq. and April H. Pullium, Esq., for the Charg- ing Party. DECISION SARAH KARPINEN, Administrative Law Judge. The General Counsel alleges that Respondent Atomic Fire Protection, LLC violated the National Labor Relations Act by coercively inter- rogating employees about their union activities, telling employ- ees that they could not work for Respondent or any other non- union company if they were with a union, telling them that Respondent did not want a union and that they could not talk to other workers about organizing, firing two employees because of their union activity and support, creating an impression that it was surveilling employees’ union activities, and misclassify- ing employees as independent contractors. As explained below, I find that Respondent coercively interrogated employees, un- lawfully told them they could not work for Respondent or other non-union companies if they were with the union, unlawfully told them that Respondent did not want a union and that they could not talk to other employees about organizing, and unlaw- fully terminated employees because of their union or protected activities. I do not find that Respondent created an unlawful impression of surveillance. Finally, I find that Respondent mis- classified employees as independent contractors, but that the misclassification does not violate the Act under existing Board law. STATEMENT OF THE CASE By agreement of the parties, this case was tried via Zoom video technology on September 5 and 6, 2023. The Charging Union, Sprinkler Fitters Local 281 (Union) filed a charge against Respondent on October 20, 2022, and amended it on May 2, 2023. On May 15, 2023, Region 13 issued the Com- plaint in this matter. Respondent timely filed its Answer on May 30, 2023. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent, and the Union, I make the following:1 FINDINGS OF FACT I. JURISDICTION Based on the pleadings and stipulated facts, Respondent ad- mitted, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Sprinkler Fitters Local 281 (the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. (GC Exhs. 1(e) and (f) and 2). II. ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Respondent’s operations and leadership structure Respondent installs fire sprinkler systems. It has a business address in Riverwoods, Illinois. The Complaint in this matter alleges that Peter Balac is Respondent’s owner, supervisor and agent. (Complaint Paragraph IV, GC Exh. 1(e).) Respondent admits that Balac is its supervisor, agent and Project Manager. (GC Exh. 1(g).) At the hearing, Helena Bojovic Balac testified that she is Respondent’s owner, manager and president, with the sole authority to hire and fire employees. (Tr. 157, 159, 237.) Bojovic Balac and Balac are married. (Tr. 127.) Balac denied having authority to hire or fire employees, and said his responsibilities are to “find the jobs, to install jobs, to design jobs, to deliver material on a job,” and to do inspections. (Tr. 126.) 2. Local 281 Organizer William Hincks seeks work with Respondent William Hincks is an organizer employed by Sprinkler Fit- ters Local 281. He also serves as the Union’s vice president. (Tr. 25.) He is an experienced sprinkler fitter who regularly does continuing education and field work. (Tr. 33–34.) As part of his organizing efforts, Hincks created a database of all the non-union contractors in the area serviced by the Union, includ- ing Respondent. (Tr. 26.) In mid-September 2022, Hincks learned that Respondent had a contract for a hotel project in Orland Park, Illinois. He went online and looked for a contact number for the company. The number listed was for Peter Balac. Hincks called the number and left a voicemail stating 1 The following corrections should be made to the transcript: On p. 63, line 6: “Bolek,” should be “Balac.” On p. 107, line 22, “Bolek” should be “Balac.” On p. 177, line 5: “cold compliance,” should be “code compliance.” On p. 203, line 13: “Balac” should be “Bolek.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 that he was a sprinkler fitter looking for work. (Tr. 27–28.) On September 16, Balac responded via text, identifying him- self as, “Peter [line break] Atomic Fire Protection [line break] If you need job.” Hincks responded that he was still interested, and on September 20, he texted, “Ready for work, steel or cpva…” Balac asked if they could meet or talk that Saturday, September 26. Hincks responded that he was available. On Saturday, Balac sent Hincks an address in Orland Park and told him to “stop by” on Monday. Hincks said he would be there, “ready to work,” and asked whether he should bring tools. Balac responded, “Yes,” and said they were doing “plastic, 1 1/2” and 1.” (Tr. 28–31, GC Exh. 3.) According to Balac, Respondent was not hiring at this time, but after Hincks told him he was out of work and his wife was pregnant, he felt bad for him and “brought him in on a job site, you know, to see how it’s going to go.” (Tr. 218.) Balac said that Hincks worked for Respondent as a pipefitter installing fire sprinkler systems. (Tr. 242.) Balac uses the terms pipefitter for workers who install fire sprinklers. (Tr. 242–243.) As there is no dispute that these workers were installing sprinklers, from here forward, I will refer to these workers as sprinkler/ pipefit- ters. B. Hincks begins working at Respondent’s Orland Park site Hincks reported to the Orland Park job site on Monday, Sep- tember 26. Balac arrived at about 7 a.m. with two people who will be identified in this decision by their initials, KC and GT. Both do sprinkler installation work for Atomic. (Tr. 36.) After they arrived, Balac sent KC and GT to the work vehicle to get tools and started walking up the project stairwell with Hincks. According to Hincks, as they walked up the stairs, Balac asked him how he got his number, and Hincks told him he got it online. Balac then asked him if he was with the Union. (Tr. 37.) Hincks said he graduated from the Union’s apprenticeship program but was no longer with the Union. (Tr. 37.) Balac asked him what company he worked for, and Hincks told him he worked for Alliance Fire Protection, now known as United States Alliance Fire Protection. Balac asked Hincks if he was able to perform inspections, and he responded that he could. (Tr. 37.) Balac asked Hincks about wages. Hincks told him he wanted $35 to $40 per hour. Balac offered to start him at $35, and Hincks accepted. (Tr. 37–38.) Balac then went over the project blueprints with Hincks, telling him they would be starting at the fifth floor and working down, and that working hours would be 7 a.m. to 3 p.m.. (Tr. 38.) After this, Hincks went to work. Hincks shared tools with KC and GT at the Orland Park site. He also took photos of the tools. The tools were marked “Atomic Fire Protection,” or “AFP,” and included ladders, a battery, and cordless drills. (Tr. 43–44, GC Exh. 4.) Hincks also shared a band saw and a pipe shear with GT and KC. (Tr. 45.) Hincks recalled that Balac brought two drills to the job site with him, and that the other tools came out of the vehicles KC and GT were driving. (Tr. 46.) Hincks took a photo of the vehicle GT drove to the worksite. The vehicle was registered to Helena Bojovic Balac at Respondent’s business address in Riverwoods. (Tr. 46–49, GC Exh. 5.) According to Balac, when Hincks arrived, Balac asked him how he knew how to install sprinklers, and Hinks told him he used to work for a company called USA Fire Protection. Balac also worked there in the past, and they discussed people they both knew. (Tr. 218.) After that, Balac introduced Hincks to GT and KC, then showed him his drawings and what he intend- ed to install. At the end of the day, Hincks texted Balac with his hours. (Tr. 219.) Balac acknowledged that individuals are not allowed to walk onto one of Respondent’s job sites and start working, and that only people working for Respondent can use its tools and equipment. (Tr. 127–128.) Hincks testified that he reported his hours to Balac via text, telling him he worked with KC and GT on the fourth and fifth floors. He also told him it would help to have some additional tools because he, GT and KC were all sharing the same tools. (Tr. 42–43, GC Exh. 3.) Hincks continued to work at the Or- land Park site for the remainder of the week. 1. Hincks refers Price Balac testified that he visited the Orland Park job site over the weekend of October 1. He first testified that he went to the site on Sunday, then said that he was there on Saturday, Octo- ber 1. (Tr. 219–220.) He testified that he looked at the work Hincks did the week before and was not satisfied because Hincks was installing additional elbows so that the sprinklers lined up with the light fixtures, which took more time and ma- terial and was not how he designed the job. (Tr. 221.) Balac did not discuss his dissatisfaction with Hincks that weekend. (Tr. 224). Also on October 1, Hincks contacted Balac via text message and asked if Balac could bring a particular type of anchor, called a Sammy Express anchor, to the job, along with a drill attachment tool for the anchors. During that exchange, Hincks told Balac he worked with someone in Arizona that had “lim- ited experience doing sprinkler work” and would “probably work for 20 bucks per hour if you hired him and he is available Monday if you want.” Balac replied, “Tell him to come Mon- day.” (Tr. 49–51, GC Exh. 6.) According to Balac, when Hincks told him he had a guy who was looking for work, he told him, “bring him on, no problem.” (Tr. 221.) He acknowledged that he agreed to bring Price on despite his claimed dissatisfaction with Hincks’ work. (Tr. 227.) He testified that he spoke to Hincks about his work the next day, on Monday, October 3, and expressed dissatisfaction with the way Hincks lined up the sprinklers with the light fix- tures, and that Hincks responded that he did it that way because it looked better. (Tr. 224–225.) C. Price begins working at Orland Park job site Darrius Price reported to the Orland Park job site on the morning of Monday, October 3. Hincks met him there and brought him to the fifth floor, where he introduced him to Balac. (Tr. 52.) Hincks stood about five feet away from Price and Balac while they discussed the job and Price’s work histo- ry. (Tr. 52–53.) Hincks heard Balac asking Price about his ex- perience, and if he would be willing to work for $20 per hour. When Price said he would accept that rate, Balac told him that he was hired and could begin working. Hincks immediately gave Price a task, and he started work. The conversation took ATOMIC FIRE PROTECTION, LLC 5 about five minutes. (Tr. 53.) According to Price, when he got to the job site, Balac asked him how long he had worked as a sprinkler fitter, and he re- sponded that he had been working in the field for four or five years. Balac appeared pleased. (Tr. 94.) Balac then asked him if he was Union. He responded that he was not, and Balac said, “Okay, good. Cool.” (Tr. 95.) Price testified that he did not join the Union until the next month, November 2022. (Tr. 120.) Price and Balac agreed to a wage of $20 per hour. (Tr. 94.) Balac then told him he would provide him with some basic tools for the job and that he was hired and could get to work. (Tr. 96.) On his first day, Price used some of the same tools as KC, which included drills marked “AFP.” (Tr. 97.) Balac claimed that the only conversation he had with Price consisted of Price asking, “can I work for $20,” and Balac re- sponding, “yeah, sure, no problem.” (Tr. 222.) Balac said that Price was “expecting to be a helper” but denied talking to him about his work history. (Tr. 222.) 1. Balac asks Price and Hincks to fill out 1099 forms Hincks testified that on October 3, Balac asked him how he wanted to be paid and whether he wanted to fill out a 1099 tax form. Balac told him that some people working for him used a 1099 “like it’s their own business,” to pay less in tax. Hincks replied that he would be paid however Balac wanted to pay him. Balac said he would get him paperwork to fill out. (Tr. 54–55.) According to Price, Balac asked him if he would like to fill out a 1099 form and explained that this would be beneficial because Price would not have any taxes taken out, and it would be like he was working for himself but being paid by Balac. (Tr. 95–96.) 2. Price and Hincks discuss the Union with other workers Hincks testified that he and Price went to lunch together on October 3. When they returned, KC was at the Orland Park job site. Hincks introduced KC to Price, and they all resumed working. As they worked, KC asked Hincks how long he planned to stay at the job. Hincks said he hoped to stay there as long as he could, and that he hoped Balac could start paying them better and giving them benefits such as health insurance and retirement. He then introduced the topic of the Union and told KC that benefits, pay and training were the best thing about being part of it. Hinks testified that Price was present for this conversation. (Tr. 56–57.) Price also testified about a conversation that occurred about the Union, but said that it occurred the next day, on October 4, and that he, Hincks, GT and KC talked about forming a Union. Hincks explained to the group that they would get better bene- fits including health and dental insurance at no cost to them if they were part of the Union and would also receive higher pay. (Tr. 103). Price said that he spoke up during this conversation and said he would support a Union at the workplace. (Tr. 104.) 3. Balac visits Orland Park job site on the morning of October 4 On the morning of October 4, Balac visited the Orland Park job site. He gave W-4 forms to Hincks and told him to make sure that he and Price filled them out. (Tr. 57–58.) Shortly af- terward, GT and Price arrived and walked to the fifth floor of the construction site with Hincks, carrying the tools they need- ed for the day. (Tr. 58–59.) Balac came upstairs shortly after they started work and gave Price several new tools, including an impact driver or wrench and a drill. (Tr. 59-60, 100–101.) Price took photos of himself with the tools, which were marked “Atomic Fire Protection” or “AFP.” One tool was also marked with the month and year, 10/22. (Tr. 60, 100–101, GC Exh. 11.) Balac admitted purchasing tools for Price and Hincks and said he did so because they needed them to do their work. (Tr. 135.) Hincks recalled that after Balac gave Price the tools, he complimented Hincks’ work, telling him that everything looked good, and that they were “moving along great.” Hincks in- stalled piping so the lettering on it lined up and was uniform, and Balac complimented him on how it looked. Price and GT were present when Balac made this comment. (Tr. 60–61.) Price recalled that Balac came to the fifth floor on the morning of October 4 smiling. He told Price and Hincks that they were doing a great job, and that he was very happy. (Tr. 99.) D. Balac calls Hincks after encountering Union business agent Balac left the Orland Park job site on the morning of October 4 to go to another job site. He was followed to the other site by someone who identified himself as a union business agent. Balac said that seeing the business agent gave him a “hunch” about Hincks, so he called him to ask him if he worked for Local 281. (Tr. 220.) After Hincks told him he worked for the Union, Balac said that he asked him why he lied to him about looking for a job. He said, “first I was upset about not doing the work properly and then I was upset about him…lying to me. And I just told him to leave the job site.” (Tr. 220.) Balac testi- fied that he told Hincks to leave the job with Price and did not tell Hincks or Price why Price had to leave. (Tr. 229.) Hincks testified that he took the call from Balac on speaker. GT was standing 10 to 15 feet away, and Price was a little fur- ther than that. As the conversation progressed, Hincks walked closer to GT and Price, while keeping the phone on speaker. (Tr. 63.) He stood about five feet away from the other workers for the rest of the call. (Tr. 67.) Balac started the call by asking Hincks if they could use steel Sammys on the job. Hincks re- sponded that he did not think so, because steel Sammys re- quired a backing nut to be rated properly. (Tr. 63.) Sammys refer to hangers that are used when installing sprin- kler systems. There are different types depending on the kinds of materials used. According to Hincks, the hangers on the Orland Park site were self-tapping straight steel Sammys, which usually need to be installed with a backing knife and must have a retaining, or backing, nut to get the proper rating. Hincks previously raised concerns with Balac about the rating of the hangers they were using. (Tr. 83.) After asking about the hangers, Balac told Hincks he needed to talk to him about “some strange stuff” that was happening since Hincks started that seemed “very fishy.” (Tr. 63–64.) Balac said that a union BA came to his other job site and was talking to the owner about hangers, and since Hincks also kept talking about hangers, it seemed “really fishy.” Hincks asked who came to the job site, and Balac said it was “some fucking Union BA or some shit.” (Tr. 64). Balac then asked, “I need you to tell me right fucking now, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 are you with the Union…?” Hincks told him he did not know what he was talking about. Balac became louder, telling him to “fucking tell me right now, are you with the fucking Union? You can’t be with the…Union if you’re here.” (Tr. 64.) Hincks asked Balac why it mattered and asked him whether he was doing a good job. Balac again insisted that Hincks tell him “right fucking now” whether he was with the Union. (Tr. 64– 65.) Hincks responded that he was with the Union, and that it was his right to talk to KC, Price and GT, and that they were all allowed to be in a Union and talk about how to organize a Un- ion and how to get better benefits, health care and insurance. (Tr. 65.) Hincks recalled that Balac “totally lost it” and screamed, “This is bullshit, man. You’re fucking bullshit. Is this why the hell you come here to bring a Union?” He threatened to call the Union to get Hincks in trouble for working on a non-union job and said, “you can’t be non-union if you’re in the Union.” Hincks repeated that he was just there to work. Balac said, "No, this is fucking bullshit. You guys, you and your buddy, get off my fucking job. Leave the tools with [GT]. You can't be on my job." (Tr. 65.) Hincks asked if he was firing him, and Balac responded, “what the hell man. You know, what the fuck you think?” Hincks then hung up the phone. (Tr. 65–66.) Hincks said that at this point, he, Price and GT were all shocked. He and Price gathered the company tools together and stacked them, and Hincks took a photo of them. (Tr. 65–68, GC Exh. 7.) Price was able to hear the call “loud and clear” once Hincks walked over toward him. (Tr. 105, 118, 122.) He recognized Balac’s voice because he was familiar with how he sounded from their previous conversations. (Tr. 104–105.) He heard Balac yelling, “Hey, you lied to me, You guys are with the fucking Union. I told you I don’t want Union on my job. This is bullshit. This is fuckin’—you guys are bullshit…you guys are talking to my guys about the Union. I asked you if you were Union. You lied to me. I don’t want you talking to my guys. You know, get off my job. I want you and that guy, you and your buddy you brought, off my job.” (Tr. 106.) Price heard Hincks ask, “Peter, didn’t you just say that me and Darrius were doing a good job? Were we not doing a good job on this job?” Balac responded that they were, but “that is not the point. The point is you’re with the Union. I do not want the Union on my job. I do not want you talking to my guys about the Union. Please get off my job.” Balac instructed Hincks to leave their tools with GT. Hincks then asked if they were being fired and Balac said, “What do you think? You’re Union, I don’t want the Union on my job…” Price further testi- fied, “He’s like you’re fired. Get you and your little buddy, leave your tools and get off my…” (Tr. 106–107.) E. Termination of Hincks and Price After the call ended. Hincks and Price stacked up their tools and took a photo of them. (Tr. 66, 68, 107, GC Exh. 7.) This included two ladders, a drive ratchet with a sprinkler head wrench, a bandsaw, pipe shears, drill kits, and piping. (Tr. 67– 68, GC Exh. 7.) Hincks and Price also emailed their W4 forms and hours to Balac. (Tr. 70–71, 107–108, GC Exhs. 8 and 13.) Balac testified that he told Hincks to leave because of “[h]is job performance and he lied to me.” (Tr. 226.) Balac did not speak to Bojovic Balac before telling Hincks to leave the job site and made that decision on his own. (Tr. 228–229.) Balac testified that Hincks lied about not having a job, and that Balac found out that this was untrue when Hincks told him he was employed full-time by Local 281. (Tr. 230.) Bojovic Balac testified that she returned from a trip to Eu- rope on Monday, October 3, and that when she returned home, Balac told her he “brought on two guys.” Balac also told her he was not happy with Hincks’ work. (Tr. 239–240.) She said that she fired Hincks because Balac said he did not do good work and, “combined with our finances and planning, I just decided that was it for him.” (Tr. 240.) Bojovic Balac never spoke to Hincks. (Tr. 243.) She testified that she wrote Hincks a letter and put it an envelope with his paycheck. (Tr. 239.) The letter was dated October 7, 2022, and said that Respondent would not be “offering you the full-time job at this moment, on grounds of unsatisfactory performance during one week of field work. Expected amount of work was not accomplished and after test- ing the preformed work, workmanship was not to the satisfacto- ry level.” (GC Exh. 9.) Hincks received his paycheck, but testi- fied that he never got the letter. (Tr 77, GC Exh. 10.) With respect to Price, Balac said that he was terminated be- cause Atomic did not need a “helper.” (Tr. 229.) Bojovic Balac testified that a “helper was definitely not something we need- ed…if he doesn’t even know how to do the job, like a…proper pipefitter, we don’t need him.” (Tr. 240.) She sent a termination letter to Price, dated October 7, which states that Atomic “won’t be offering you the job at this moment as we are not currently in need of a pipe fitter helper.” (Tr. 244–45, GC Exh. 12.) Price testified that he was confused by the letter because there were months of work remaining on the Orland Park job, and he had not been working as a pipe fitter helper, but as a sprinkler fitter. (Tr. 112.) ANALYSIS A. Credibility In determining whether Respondent violated the Act, I con- sidered what testimony to believe when witness accounts dif- fered regarding the central facts in this matter. In making this determination, I considered the testimony of all the witnesses in the context of their demeanor, the weight of the evidence, the facts, the probability that the testimony was true, and the rea- sonable inferences that could be drawn from their statements. See Double D Construction Group, 339 NLRB 303, 305 (2003), citing Daikichi Sushi, 335 NLRB 622, 623 (2001). Hincks was a calm witness who testified in a quiet and straightforward manner. He had a clear recall of conversations he had with Balac, remembering what he was doing and where he was when he had conversations with Balac. Some of his testimony was bolstered by photographs he took while working at Respondent’s job site, and other testimony was corroborated by Price, who was not in the hearing room while Hincks testi- fied. Hincks’ demeanor did not change under cross- examination, and he readily admitted facts that Respondent sought to elicit for its case. Price was a more animated witness who expressed surprise and other emotions at appropriate moments during his testimo- ATOMIC FIRE PROTECTION, LLC 7 ny. He testified in a forthright manner and was equally respon- sive on both direct and cross, making an honest effort to answer questions from Respondent’s attorneys. He had excellent recall of conversations he had or overheard during his short time on the job and was able to recount them without hesitation. His testimony was also corroborated by Hincks and by photographs and other documentary evidence. In its brief, Respondent suggests that Price should be dis- credited because he testified that he did not become a member of the Union until November- but signed an email that he sent to Respondent in early October as a “proud member of Local 281.” (R. Br. p. 7, GC Exh. 13, p. 2, Tr. 120.) I find that this discrepancy does not damage Price’s overall credibility because he had nothing to gain by lying about not being a member of Local 281 while he was at working for Respondent. In fact, he would have an incentive to show as much union activity or support as he could to prove his claim that Respondent discrim- inated against him because of his union activity or support. Therefore, any discrepancy on this issue does not suggest that he should not be believed on other points in his testimony. See Daikichi Sushi, supra, 335 NLRB at 622. Respondent also claims that Hincks and Price should be dis- credited because they contradicted each other when Price testi- fied that Balac explicitly told them they were fired, and Hincks did not. (R. Brief, pp. 8 and 14). In fact, their testimony is re- markably consistent. Price testified that Hincks asked Balac if he and Price were being fired Balac responded, “What do you think. . .” and that Balac was “like you’re fired. Get you and your little buddy, leave your tools, and get off my. . .” (Tr. 107). For his part, Hincks testified that he asked if he was fired, and Balac said, “You know, what the fuck you think?” (Tr. 66). Although the words that Hincks and Price recall being used did not exactly match, the tone and meaning of their testimony matches very closely and I credit them both. In contrast to Price and Hincks, Balac was not very forth- coming on cross examination, giving short answers and fre- quently looking down and away from the camera. As described more fully below, his testimony was evasive on some points, and implausible on others. I considered that English is not his first language when assessing his credibility- however, he ap- peared to have a strong vocabulary, and I found his testimony to be evasive or implausible only on material points in the case, including about whether he hired Hincks and Price, and (as discussed below) whether he talked to Price before hiring him. As an example, Balac said of Price, “I hired him. I mean, I didn’t hire him, I brought him on.” (Tr. 227.) I can’t attribute any credibility problems to a language barrier and find that they were the result of him trying to obfuscate information that might be damaging to his case. Bojovic Balac was more forthcoming, but her testimony was not supported by the facts on several key points, as discussed more fully below, and she contradicted Balac on others. An example of such a contradiction occurred when Balac and Bo- jovic Balac were asked about their supervision of KC, who Respondent claims is an independent contractor. Balac testified that he does not tell KC how to perform his job and is “never” there while KC is working, but that he does review his work. (Tr. 132.) Bojovic Balac testified that Balac sometimes works with KC but does not review his work. (Tr. 165.) In contrast with Price and Hincks, who did not always use the same exact words but corroborated each other in tone and meaning, the Balacs directly contradicted each other on whether Balac worked with KC and whether he reviewed his work. I specifically discredit both Balac and Bojovic Balac in their testimonial denials that they did not hire or even fire Hinks and Price, as those claims are implausible and contrary to the weight of the evidence, as explained more fully below. I generally credited the General Counsel’s witnesses where they differed from Respondent’s witnesses. However, I also followed the general precept that credibility determinations are not an “all or nothing” proposition, and that it is possible to disbelieve portions of a witness’ testimony without discrediting everything that they say. Daikichi Sushi, supra, 335 NLRB at 622 (2001). B. Balac had authority to hire and fire employees and speak for Respondent and he did in fact hire and fire the 2 employees in this case. I will first address Respondent’s easily disprovable claim that it never hired Hincks or Price. As noted above, I discredit both Balac and Bojovic Balac’s testimony on this subject. It is undisputed that Price and Hincks worked on Respondent’s job site, used Respondent’s tools, installed its equipment, and were paid for their work. Respondent points out that neither employ- ee filled out a job application, gave references, or received a handbook (R. Br. p. 5)- but Respondent never provided any evidence that it asked Hincks or Price for this information or that it even had a handbook or application to give them. I find that both were hired by Respondent. I also find that Pe- ter Balac hired them. A company official has the apparent au- thority to bind the company with respect to their actions or statements if their actions or statements could reasonably be interpreted as demonstrating authority to act on behalf of the employer. See RHCG Safety Corp. & Constr. & Gen. Bldg. Laborers, Loc. 79, LIUNA, 365 NLRB 852 (2017), citing Metco Products v. NLRB, 884 F.2d 156, 159 (4th Cir. 1989). A reasonable employee would believe that Balac had the au- thority to hire based on his actions. Hincks looked up contact information for Respondent and found Balac’s number. He left a message with Balac, who responded as, “Peter [line break] Atomic Fire Protection [line break] If you need job,” and told him to come to the work site with his tools. (Tr. 29–31, GC Exh. 3.) When Hincks got there, Balac asked him about his work history, then negotiated with him over wages before showing him the blueprints and allowing him to begin work. Although Hincks was evasive about whether he hired Price, first saying he hired him and then correcting himself to say he “brought him on,” both Hincks and Price recall Balac telling Price that he was hired, and I credit their testimony on this point because it is supported by the undisputed facts of this case and facts Balac that admitted to, including negotiating a wage with Price and buying him new tools. Balac also admitted that Respondent does not allow people who are not associated with the company to come on its job site or use its tools. I also find that Balac had the authority (or apparent authori- ty) to speak for Respondent when he questioned Hincks and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Price about their union activity, and when he called Hincks to again question him and berate him about his Union activity. Balac is an admitted supervisor and agent. He was the only company official that Hincks or Price ever met, and he spoke with both about their pay, work hours and other employment matters. A reasonable employee would believe that Balac was speaking for Respondent when he questioned them and made statements about the Union. See Sproule Constr. Co. & Int'l Union of Operating Engineers, Loc. Unions 139, 150, & 234, 350 NLRB 774, 778 fn. 2 (2007) (office clerical who handed applicant a job application, then asked him whether he was union member, was speaking for employer), citing GM Elec- trics, 323 NLRB 125, 125–126 (1997) (employee who greeted applicants and provided and collected applications was em- ployer's agent). Finally, I reject Respondent’s claim that Balac had no au- thority to fire anyone, and that only Bojovic Balac had that authority. Balac admitted that he brought Price and Hincks on and told them to leave without consulting with Bojovic Balac. (Tr. 228–229.) He was also the only person who had been communicating with them on behalf of Respondent, which would lead a reasonable employee to believe he had the author- ity to fire them. See e.g., RHCG Safety Corp, supra, 365 NLRB 852 (2017) (official charged with relaying information to em- ployees had apparent authority to fire employee). And, while Price and Hincks’ testimony may differ slightly as to whether Balac said, “you’re fired,” Balac’s meaning was clear whether he said, “You’re fired” or said, “What the fuck you think?” when asked if they were fired. See Poly-America, Inc. v. NLRB, 260 F.3d 465, 477 (5th Cir. 2001) (Board may find that em- ployees were fired even when there is no evidence the word “fired” was used). C. Balac unlawfully interrogated employees The General Counsel alleges that Balac unlawfully interro- gated employees about their union and/or protected concerted activity on three separate occasions: September 26 (in-person interrogation of Hincks), October 3 (in-person interrogation of Price) and October 4 (phone interrogation of Hincks with Price and GT listening). (Complaint Paragraphs V, VI and VII(a)). Questioning an employee about their affiliation with or sup- port for a union violates Section 8(a)(1) of the Act when the questioning is done in a way that would make a reasonable employee feel that they might suffer adverse consequences for exercising their right to engage in union or protected activity. To determine when questioning has reached this level, the Board applies a totality of the circumstances test. See Rossmore House, 269 NLRB 1176, 1177–1178 fn. 20 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Factors considered include (1) the background in which the questioning takes place and whether there is a history of union animus; (2) the type of information sought; (3) the questioner’s place in the employer’s hierarchy; (4) the location and method of the questioning; and (5) whether the interrogated employee feels they can answer truthfully. These factors are not to “be mechanically applied,” but should instead “serve as a frame- work for assessing whether under all the circumstances, the questioning had a coercive impact on the employee.” Westwood Health Care Center, 330 NLRB 935, 939–940 (2000) (internal citations omitted). It is particularly coercive to ask someone about their support for a union when they are seeking work. RHCG Safety Corp., supra, 365 NLRB 852 (2017), citing Facchina Construction Co., 343 NLRB 886, 886 (2004), enfd. 180 Fed.Appx. 178 (D.C. Cir. 2006) (unpublished) (additional citations omitted). The lack of a legitimate purpose for asking about union activi- ty, or the failure to communicate that purpose to the person being questioned, also weighs in favor of finding questioning to be coercive, as does a failure to offer assurances against repris- als. Id., citing Windemuller Electric, Inc., 306 NLRB 664, 673 (1992) (no evidence of legitimate purpose for questioning, and no legitimate purpose conveyed), enfd. 34 F.3d 384 (6th Cir. 1994), and NLRB v. Brookwood Furniture, 701 F.2d 452, 462 (5th Cir. 1983) (no evidence of valid purpose, and no assuranc- es against reprisal). 1. September 26 interrogation of Hincks and October 3 inter- rogation of Price I credit Hincks’ testimony that Balac asked him if he was with the Union when he arrived at the job site on September 26. Hincks was detailed in his memory of his initial conversation with Balac and was able to recount how they walked to the fifth floor of the job site while they talked, ending with Balac un- rolling the blueprints and showing him what his plans for the hotel’s sprinkler systems. He displayed a detailed memory of what happened and what was said, and his mannerisms during his testimony reflected his efforts to place himself back at the job site and remember the conversation. His testimony was also partially corroborated by Balac, who remembered talking about a unionized company where they both worked in the past. I also credit Price’s testimony that Balac asked him about his Union affiliation. Price testified without hesitation that Balac asked him if he was in the Union and said, “OK, good, cool” when he said he was not. In assessing Price’s credibility on this point, I considered that Hincks testified that he heard Price and Balac talking about Price’s work history and his desired rate of pay but did not mention Balac asking Price whether he was with the Union. However, I find that Hincks’ failure to corrobo- rate this part of the testimony is not enough to discredit Price when Hincks was not part of their conversation and did not claim to hear everything. I am also unable to discredit Price based on Balac’s testimo- ny, which I found implausible and not supported by the facts. Balac claimed that he did not talk to Price at all, other than to say yes when Price asked if he could work for $20. It is unlike- ly that a project manager would allow someone to start working on an active construction site after such a limited interaction. In addition, Balac’s claim that those were the only words they exchanged is contradicted by his claim that he knew that Price wanted to work as a “helper,” and that he brought Price tools because he needed them- things he would not know without talking with him. Having found that the questioning took place, I also find that it was coercive. Hincks and Price were both questioned by Balac during their initial conversation with him, at a time when they had not yet been put to work. The fact that the questioning ATOMIC FIRE PROTECTION, LLC 9 took place at a time when they were initially seeking work, by an official with the ability to put them to work, leans heavily toward finding the questioning to be coercive, because job ap- plicants necessarily feel that their chance of being hired rides on their answers to an employer’s questions when they are seeking work. See RHCG Safety Corp., supra, 365 NLRB 852 (2017) (finding that official with power to put employee to work coercively questioned the employee about union). Hincks concealed his affiliation with the Union in response to Balac’s question. An employee’s feeling that they must lie about their union sympathies or activities supports a finding that questioning is coercive. Evergreen America Corp., 348 NLRB 178, 208 (2006), enfd. 531 F.3d 321 (4th Cir. 2008). Price testified that he was not a member of the Union when he came to work for Respondent, so his response was truthful, but Balac’s response, “OK, good, cool,” sent a message that “no” was the correct answer to his question. See RHCG Safety Corp., supra, 365 NLRB 852 (2017), (asking employee “U working for Redhook or u working in the union?” implied that the two were incompatible). Balac did not give a legitimate reason (either at the hearing or to Hincks and Price) for why he asked either employee about their union affiliation, and he did not give any assurances that the applicants would be hired regardless of their answer. See Sproule Constr. Co. & Int'l Union of Operating Engineers, Loc. Unions 139, 150, & 234, 350 NLRB 774, 778 fn. 2 (2007) (ap- plying totality of the circumstances, questioning was coercive when it occurred when applicants were seeking employment, the applicants felt it necessary to conceal their union support, and the employer did not provide a legitimate explanation for the questioning). I find that Respondent violated Section 8(a)(1) of the Act by coercively questioning Hincks and Price about whether they were with the Union September 26 and October 3, 2022. 2. October 4 phone interrogation of Hincks with Price and GT listening I also credit the testimony of Hincks and Price that Balac questioned Hincks again about whether he was with the Union during their October 4 phone call. Balac admitted that his whole purpose in calling Hincks was that he had a “hunch” about him after seeing a Local 281 business agent on another job. He denied asking Hincks about his Union affiliation, and instead insisted repeatedly that he asked Hincks if he worked for Local 281, as illustrated below: GC: After you told Mr. Hincks that a BA had been following you, what else did you tell Mr. Hincks? Balac: I asked Mr. Hincks if he’s employed by Local 281. GC: So you did ask him if he was employed by the Union? Balac: I asked if he worked for Local 281. GC: Do you know that Local 281 is a union? Balac: Yes. It’s a union, yeah. GC: Okay, so you did ask Mr. Hincks whether or not he was employed by the union? Balac: I asked him about does he work for a Local 281? GC: Okay. And so you asked him if he worked for a union, correct? Local 281 is a union. Balac: Okay. GC: So you did ask him if [he] worked for the union? Balac: I asked him if he works for a Local 281. (Tr. 231– 232). Respondent claims that Balac was not concerned about whether Hincks worked for a Union but was instead concerned about him lying about not having a job when he first sought work with Respondent. This explanation is not supported by the rest of Balac’s testimony. If he saw a business agent, and start- ed to make the connection between Hincks and the Union from that, why would he automatically assume that Hincks worked for the Union instead of thinking that he might be a member of or otherwise affiliated with Local 281? In addition, both Price and Hincks were consistent in testify- ing that Balac was very angry with Hincks. Hincks said that Balac told him he had to tell him “right fucking now” if he was with the Union. It is unlikely that Balac would have had the same reaction to finding out the Hincks just had another job- especially when Price and Hincks credibly testified that Balac made negative references to Hincks and the Union, calling them “bullshit,” and threatening to get him in trouble for work- ing for a non-Union company. The hostile tone of the question- ing in the context of other unfair labor practices supports a finding that it was coercive. See Boar's Head Provisions Co., 370 NLRB No. 124 (2021), slip op. at 19 (questioning was coercive when accompanied by threats that adverse events would occur if employees supported the union); see also Hoff- man Fuel Co., 309 NLRB 327, 327 (1992) (questioning unlaw- ful when overall tone of conversation was hostile and question was accompanied by veiled threat). Finally, even if I were to credit Balac’s claim that he only cared about whether Hincks had another job, not that it was with the Union, there is no evidence that he explained that to Hincks. Therefore, even if Respondent could show that Balac had a legitimate purpose for questioning Hincks, by failing to communicate that purpose to him, he also failed to mitigate the coerciveness of the questioning. See RHCG Safety Corp., su- pra, 365 NLRB 852 (2017). Based on the above, I find that Balac violated Section 8(a)(1) of the Act by questioning Hincks about whether he was with the Union during their October 4 phone conversation. D. Balac made additional statements that interfered with em- ployees’ Section 7 rights. Section 7 of the National Labor Relations Act gives employ- ees the right to engage in organizing and other protected con- certed activities for mutual aid or protection. To prevent em- ployers from making threats or other statements that would chill employees in the exercise of their Section 7 rights, Section 8(a)(1) of the Act prohibits employers from interfering with, restraining or coercing employees from engaging in union or protected concerted activity. The General Counsel contends that Respondent interfered with its employees’ right to engage in union activity when Balac told Hincks (and employees who overheard the call) that he could work for Respondent or any other non-union company if he was with the union, that Respondent does not want a un- ion, and that he could not talk to other employees about the benefits of organizing. (Complaint Paragraphs VII (b) and (c).) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 In determining whether a statement to employees is unlaw- ful, the Board looks at whether, under all the circumstance, it “would reasonably tend to interfere with, restrain, or coerce an employee in the exercise of his Section 7 rights.” NCRNC, LLC, 372 NLRB No. 35, slip op at 12 (2022), citing Network Dynamic Cabling, 351 NLRB 1423, 1427 (2007). This standard is objective, not subjective; the motivation behind the statement and its actual effect are not relevant. Id., citing Sunbelt Rentals, Inc., 370 NLRB No. 102, slip op. at 3 (2021). As noted above, Hincks testified clearly and without hesita- tion about his conversation with Balac, and I credit his testimo- ny. Balac set a tone of hostility early in the conversation, telling Hincks that he ran into a “fucking Union BA or some shit,” and that something seemed “fishy” as a result. I find that a reasona- ble employee would take these comments to mean that Balac was not happy about Hincks’ affiliation with the Union and felt there was something underhanded or wrong with Union repre- sentatives being at his job site. I also credit Hincks that after he told Balac he had the right to talk to other employees about the Union, Balac “lost it” and screamed that he was “fucking bullshit,” and threatened to get him in trouble for working a non-Union job. Price’s testimony on this point differed slightly; he recalled Balac being upset and calling the situation “bullshit,” but also recalled Balac saying he did not want the Union and did not want Hincks talking to his employees. Although their testimony did not match word for word, the statements that Hincks attributed to Balac match the tone of Price’s testimony, and even if different words were used, both were consistent in saying that Balac was upset about Hincks being with the Union and talking to his employees, and that he expressed his displeasure in a way that reasonably sug- gested that he was hostile to the Union and may retaliate against employees who supported it. Finally, any doubts about Balac’s feelings were resolved when he told Hincks to take his “buddy” and get off his job. Viewed under all the circumstances, including Balac’s position as project manager, his unlawful interrogation of Hincks, his previous interrogations of Price and Hincks, his angry tone, and the fact that he ended the conversation by telling Hincks to leave and take Price with him, I find that Balac’s statements were coercive and would deter a reasonable employee from engaging in union or protected activity out of concern that Balac would react in a negative way or take adverse action against them. See Westwood Health Care Center, supra, 330 NLRB at 940 fn. 17 (statements are appropriately assessed in the context in which they are made to determine whether a reasonable employee would feel coerced). E. There is insufficient evidence that Respondent created an impression of surveillance. The General Counsel alleges that Respondent, through Balac, created an impression among its employees that it was surveilling their union and protected activities by telling them that he knew they had been talking to other employees about the union. (Complaint Par. VII (d), GC Br. p. 11.) An employer creates an unlawful impression of surveillance over employees’ union activities when it tells employees that it knows about their Union activities but does not tell them how it knows about them, causing them to believe that the employer got its infor- mation by monitoring their activities. Charter Communica- tions, LLC, 366 NLRB No. 46 (2018), slip op. at 6, enfd. 939 F.3d 798 (9th Cir. 2019). I find that this allegation is not supported by the record evi- dence. Balac called Hincks after seeing a business agent from Local 281 at another job site. He told him that was why he was calling and said that both Hincks and the business agent brought up the subject of hangers, something that Hincks dis- cussed openly with Balac. (Tr. 64.) Hincks testified that he told Balac that it was his right to talk to other employees about the Union, and that after he said that Balac “lost it” and told him “This is bullshit, man. You’re fuck- ing bullshit.” Price testified that Balac said, “This is bullshit. This is fuckin’—you guys are bullshit…you guys are talking to my guys about the Union.” Because Price testified that Balac said “you guys are talking to my guys” AFTER pronouncing the situation to be “bullshit,” and Hincks said he told Balac he could talk to other employees BEFORE Balac “lost it” and said he and the Union were “bullshit,” it appears likely that Balac was reacting to Hincks’ statement, not implying that he had inside information about employees’ union activities. I considered the Union’s argument (Charging Union’s Brief, p. 31) that Balac’s reference to “strange” and “fishy” things going on at the worksite (made early in the conversation, before Hincks admitted to his union activity) created an unlawful im- pression of surveillance by suggesting that he was aware of union activity at the job site. However, these statements are not enough for a reasonable employee to believe their activity is being surveilled when Balac directly mentioned the hangers as a reason for his suspicions about Hincks. Based on the above, I find that there is insufficient evidence to support a finding that Balac created an unlawful impression of surveillance. F. Respondent unlawfully fired Hincks and Price The General Counsel alleges that Hincks and Price were un- lawfully terminated because they engaged in union and protect- ed concerted activities, and to discourage other employees from engaging in those activities. (Complaint Paragraph IX). In most cases where an employer is accused of firing an employee because of their union or protected concerted activity, the Gen- eral Counsel has the initial burden of proving that the employee was fired, at least in part, because they engaged in protected activities. Once the General Counsel establishes a discriminato- ry motive, the burden shifts to the employer to show it would have taken the same action even in the absence of the protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 1. A Wright Line analysis is unnecessary in this case In this case, the traditional Wright Line analysis is unneces- sary because, in accordance with my credibility findings, Balac fired Hincks and Price immediately after engaging in an angry tirade about the Union and Hincks’ involvement in it, culminat- ing in Balac telling Hincks to get his “buddy” and leave his job ATOMIC FIRE PROTECTION, LLC 11 site. When an employer explicitly references an employee’s union activity when terminating them, it is not necessary to conduct a Wright Line analysis because the employer’s direct statements are enough on their own to show that the employer’s motivation in terminating the employee was an unlawful one. See Capstone Logistics LLC & Associated Wholesale Grocers, Inc., 372 NLRB No. 124, slip op. at 6 (2023); see also Tito Contractors, Inc., 366 NLRB No. 47, slip op at 6 (2018) (em- ployer’s statements when terminating employees that he heard they had been talking to the Union sufficient to establish un- lawful motive for terminations). 2. The terminations are unlawful under Wright Line Even assuming Wright Line applies, the terminations of Hincks and Price were clearly unlawful. The General Counsel’s initial burden is to show the following: “(1) union or other pro- tected activity by the employee, (2) employer knowledge of that activity, and (3) animus against union or other protected activity on the part of the employer.” Intertape Polymer Corp. and Local 1149, UAW, 372 NLRB No. 133 (2023), slip op. at 7. Respondent’s motivation for the termination “is a question of fact that may be inferred from both direct and circumstantial evidence on the record as a whole.” Id. Once the General Counsel meets this burden, the burden then shifts to the em- ployer to prove it would have terminated the employees even in the absence of their union or protected conduct. Id., slip op. at 8. a. Activity and knowledge Both Hincks and Price engaged in union activity, with Hincks talking to GT and KC about the benefits of unioniza- tion, and Price speaking up to express his support. Balac knew that Hincks was with the Union because Hincks told him he was. Although there is no evidence that Balac knew that Price spoke up in support of the Union, when Balac told Hincks to leave and take his “buddy” with him, it was clear that Balac lumped the two employees together and believed both were with the Union. It is unlawful to fire an employee because of their association with a known union supporter. See Charter Communications, LLC, 366 NLRB No. 46, slip op. at 8 (2018), enfd. 939 F.3d 798 (9th Cir. 2019) (employer unlawfully fired employees it suspected of being union supporters); see also Cast-Matic Corp., d/b/a Intermet Stevensville, 350 NLRB 1349, 1356 fn. 19 (2007) (upholding ALJ finding that employer sus- pected employee of supporting the union due to her friendship with known union advocate). b. Animus With respect to animus, I have already found that there is di- rect evidence of animus, as demonstrated by Balac’s statements during the October 4 phone call. Animus may also be demon- strated by circumstantial evidence including the timing of the adverse action and any “shifting, false, or exaggerated reasons offered for the action.” Intertape Polymer, supra, 372 NLRB No. 133, slip op. at 7. The General Counsel may also establish discriminatory motive by showing that the employer’s “asserted reasons for the adverse action were pretextual.” Id. i. Timing During his phone call with Hincks on October 4, Balac un- lawfully interrogated him, made additional coercive statements about the Union, and then told Hincks to get off his job and bring his “buddy” with him. Firing Hincks immediately after yelling at him about the Union and his involvement in it made his motivation “stunningly obvious.” See Capstone Logistics, supra, 372 NLRB No. 124, slip op. at 6, citing NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 959 (2d Cir. 1988), enfg. 284 NLRB 556 (1987). See also Intertape Polymer Corp., supra, 372 NLRB No. 133, slip op. at 16 (“The Board has long held that the timing of an adverse action shortly after an employee engaged in protected activity will support a finding of unlawful motivation,”). ii. Shifting explanations Offering “shifting, false, or exaggerated reasons” for an ad- verse action is further evidence of animus. Intertape Polymer Corp., supra, 372 NLRB No. 133, slip op. at 7. Balac did not tell Hincks and Price why they were being fired when he kicked them off the job site on October 4, but Respondent has prof- fered several different reasons since then, including the already discredited claim that they were never hired, the claim that Hincks lied about not having a job and was not doing good work, the claim that the company was not in good enough fi- nancial condition to bring them on, and finally the claim that Price wasn’t needed because he could only work as a “helper.” When an employer offers different reasons for terminating an employee “it raises the inference that the employer is grasping for reasons to justify its unlawful conduct.” Meaden Screw Products Co., 336 NLRB 298, 302 (2001) (internal citations omitted). iii. Pretext The General Counsel can also show animus by demonstrat- ing that Respondent’s stated justifications for terminating an employee are pretextual. See Intertape Polymer Corp., 372 NLRB No. 133, slip op. at 7; see also Hard Hat Servs., LLC, 366 NLRB No. 106, slip op. at 7, citing Wright Line, 251 NLRB at 1088 n.12, and Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (“If [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal--an unlawful motive--at least where . . . the surrounding facts tend to reinforce that inference.”). I have already discredited Re- spondent’s claim that it never hired Hincks or Price. I also find that its other claimed justifications are not supported by the evidence and, especially when viewed together with other evi- dence of animus, including the timing of the terminations and Balac’s unlawful statements, were pretext for Respondent’s true reason for firing them: their actual or perceived support for the Union. Compare Electrolux Home Products, 368 NLRB No. 34, slip op. at 5 (2019). Respondent claimed that Hincks’ work was not up to par. I credit Hincks and Price that Balac praised Hincks’ work. How- ever, even if I were to credit Balac’s claim that he was not sat- isfied, the quality of Hincks’ work was not a terminable offense DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 on Saturday, October 1, when Balac said he noticed it but still took Hincks’ referral of Price, or on Monday, October 3, when Balac said that he talked to Hincks about it. It did not become a terminable offense until after Balac found out that Hincks was a union organizer. Therefore, I find that this justification was pretext for firing Hincks because he was an organizer. See, e.g., Intertape Polymer, supra, 372 NLRB No. 133, slip op. at 15 (claim that employees did not properly clean equipment was pretextual when employer did nothing about it until after they engaged in union activity). With respect to the claim that Hincks lied to Balac about be- ing employed, I have already found that Balac was angry that Hincks worked for the Union, not because he was employed. This was evident when he angrily interrogated Hincks and ex- pressed his displeasure with him and the Union. Although Hincks lied about his affiliation with the Union on his first day with Respondent, such untruthful statements are protected when the lie is only about an applicant’s affiliation with the Union, and not their qualifications for the job. See Hartman Bros. Heating & Air Conditioning, Inc. v. NLRB, 280 F.3d 1110, 1112 (7th Cir. 2002). Respondent provided no evidence that Hincks was unqualified, or that his status as a union organ- izer prevented him from showing up and working every day; therefore, the fact that Hincks admittedly lied about his union affiliation cannot be used by Respondent to justify firing him. Finally, with respect to Respondent’s claim that it could not afford Hincks or Price, particularly when Price could only work as a “helper,” these claims are not supported by the facts. Bojo- vic Balac testified that she came home on October 3 and found out her husband had hired two workers she claimed they did not need and could not afford. Despite this, Balac went to the job site on October 4 with tax forms for both Hincks and Price. He also brought new tools for Price. These actions are not con- sistent with Respondent’s claim that it did not need and could not afford either employee. As to Respondent’s claim that Price was only a “helper,” it provided no evidence to support this claim other than conclusory testimony from Balac, who claimed he never talked to Price except to agree to pay him $20 per hour, and Bojovic Balac, who never saw or spoke to him at all. There is therefore no basis to consider this claim further. c. Respondent cannot meet its burden under Wright Line Because I have already found its stated reasons for discharg- ing Price and Hincks are shifting and are not supported by the evidence, Respondent cannot show that it would have fired Hincks and Price even in the absence of their actual or per- ceived union affiliation or activity. “A finding of pretext neces- sarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the Gen- eral Counsel.” Intertape Polymer Corp., supra, 372 NLRB No. 133, slip op. at 16, citing Limestone Apparel Corp., 255 NLRB 722, 722 (1981) (quotations omitted). Based on the above, I find that Respondent fired Hincks and Price in retaliation for their union or protected activity, in viola- tion of Sections 8(a)(1) and (3) of the Act. G. Misclassification of employees as independent contractors The General Counsel alleges that Respondent misclassified KC and other employees as independent contractors (Complaint Paragraph VIII), and that this misclassification violated Section 8(a)(1) of the Act (Complaint Par. X). I find that Respondent misclassified employees. However, because the evidence only shows that they were misclassified, and not that Respondent misclassified them to retaliate against them for engaging in union or protected activity, or to prevent them from engaging in such activity, I am unable to find that the misclassification vio- lated Section 8(a)(1) of the Act under existing Board precedent. 1. Classification of KC and GT KC and GT work as sprinkler/ pipefitters on Respondent’s work sites. Neither testified at the hearing. According to Balac, KC is a subcontractor who owns a company under his surname. (Tr. 129.) This company was formed only two weeks before the hearing in this matter. (Tr. 130–131.) Prior to October 2022, GT was also classified as an independent contractor. He was reclassified as an employee shortly after Hincks and Price were fired. (CP Exh. 2.) When evaluating whether a worker is an independent con- tractor or an employee, the Board applies the “nonexhaustive common-law factors enumerated in the Restatement (Second) of Agency, Section 220 (1958).” Atlanta Opera, 372 NLRB No. 95, slip. op. at 1 (2023). In analyzing these factors, “all of the incidents of the relationship must be asserted and weighed with no one factor being decisive.” Id., quoting FedEx, 361 NLRB 610, 618 (2014). The common law-factors to be consid- ered include: (a) The extent of control which, by the agreement, the master may exercise over the details of the work. (b) Whether or not the one employed is engaged in a distinct occupation or business. (c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision. (d) The skill required in the particular occupation. (e) Whether the employer or the workman supplies the in- strumentalities, tools, and the place of work for the person do- ing the work. (f) The length of time for which the person is employed. (g) The method of payment, whether by the time or by the job. (h) Whether or not the work is part of the regular business of the employer. (i) Whether or not the parties believe they are creating the re- lation of master and servant. (j) Whether the principal is or is not in business. Id., slip op. at 2. a. Extent of control over work Balac determines the projects KC and GT work on. (Tr. 154.) Both work from blueprints drawn up by Balac, which show them where the sprinkler heads, pipes and other materials should be installed. (Tr. 153, 178.) As noted above, Balac and Bojovic Balac contradicted each other on the level of supervi- ATOMIC FIRE PROTECTION, LLC 13 sion KC gets, with Balac claiming he was “never” there when KC was working, but that he did review his work (Tr. 132), and Bojovic Balac saying that Balac sometimes works with KC but doesn’t review his work. (Tr. 165.) Because Balac and Bojovic Balac gave contradictory testi- mony about whether anyone supervised KC, and because it is undisputed that both GT and KC work from Balac’s blueprints, which tell them where to install the piping and sprinklers, I find that neither worker could exercise enough control over their own work to support a finding that they were independent con- tractors. See Atlanta Opera, supra, 372 NLRB No. 95, slip op. at 20-21 (employer exercised control over employees when it determined the music they would play and how they played it). b. Nature of occupation and c. Industry standards There is no record evidence about these factors. Based on the lack of evidence, these factors do not weigh in favor of a find- ing of independent contractor status. d. Required skills To Respondent’s knowledge, KC does not have a license as a sprinkler or pipe fitter. (Tr. 169). No evidence was introduced that GT or KC hold any certifications or have completed any training. The lack of specific training or licenses weighs in favor of finding that KC and GT were employees. See Roadway Package System, Inc., 326 NLRB 842, 851 (1998). e. Instrumentalities, tools, and place of work GT and KC both work on Respondent’s job sites. Balac and Bojovic Balac both admitted that KC and GT use Respondent’s tools. (Tr. 132, 167, 175.) Respondent also supplies the neces- sary materials for its projects. (Tr. 151–152.) An employer generally provides tools and equipment to its employees, so this factor weighs in favor of finding that KC and GT were employ- ees of Respondent. See Atlanta Opera, supra, 372 NLRB No. 95, slip op. at 22. f. Tenure at Respondent Both GT and KC have been with Respondent for about 3 years (Tr. 132, 136), which weighs in favor of finding them to be employees and not independent contractors. In addition, pay records show that both work regularly without breaks in ser- vice, which also supports a finding of employee status. (Jt. Exh. 1, CP Exh. 2.) Compare Porter Drywall, Inc., 362 NLRB 7, 10 (2015) (fact that crew leaders only worked for employer for a project rather than for an indefinite time weighed in favor of finding them to be independent contractors). g. Method of payment KC is paid by the hour and earns about $35 per hour. He works 60-80 hours every 2 weeks. (Tr. 162–163.). He is paid in biweekly checks. (Jt. Exh. 1.) As an employee, GT is paid $32 an hour, which is paid on a biweekly basis. (Tr. 173, CP Exh. 2.) GT was also paid biweekly when classified as an independ- ent contractor. (Jt. Exh. 1.) KC has a 1099 form on file, and GT filled out a 1099 form prior to being reclassified as an employ- ee in 2022. (GC Exhs. 15 and 16.) Being paid by the hour instead of the job weighs in favor of finding that an individual is an employee and not an independ- ent contractor. Although the failure to deduct taxes or benefits from employee checks generally weighs in favor of a finding of independent contractor status, when employees are paid by the hour, this fact weighs in favor of a finding of employee status even when no taxes are deducted. See Atlanta Opera, supra, 372 NLRB No. 95, slip op. at 22. h. Regular business of employer Respondent is engaged in the business of installing fire sprinkler systems. GT and KC install those systems. There is no evidence that Respondent listed either worker as a separate contractor on its jobs (as discussed more fully below), so it appears that KC and GT were performing the essential work of Respondent’s business under Respondent’s name, a factor weighing heavily in favor of finding that they were employees. See Porter Drywall, Inc., supra, 362 NLRB at 11, citing Road- way Package System, Inc., supra, 326 NLRB at 851. i. Belief of the parties Bojovic Balac testified, “I don’t know whether [KC] works for us or not.” (Tr. 169.) Balac claimed that KC is a subcontrac- tor; however, his claim is undermined by the cavalier way in which he presented the 1099 forms to Hincks and Price, telling them they were used to reduce their taxes and not asking them whether they had their own businesses, as well as by contracts and other documents that the Charging Union entered into the record. (CP Exhs 8–10.) KC and GT worked on an Atomic project on State Street in Chicago. (Tr. 150.) Bojovic Balac signed waiver of lien forms for that project in late 2022 and early 2023, but did not list any subcontractors, even though the form requests the names and addresses of all “parties having contracts or sub contracts for specific portions of said work…” Only Respondent was listed as providing “labor/material” for the job. (CP Exhs. 9 and 10.) Respondent also had a project on Willow Road in 2022. Balac testified that KC worked on that project. (Tr. 145). As a subcontractor on the Willow Road project, Respondent signed an agreement with the general contractor. This agreement states that Respondent must have a written subcontracting agreement with any subcontractors it brings on the job. However, Re- spondent has no written subcontracting agreement with KC. (Tr. 130, 148, CP Exh. 8, p. 6.) j. Whether individual is rendering services as part of an inde- pendent business In determining whether someone is operating as an inde- pendent business, relevant factors include whether the person: “(a) has a realistic ability to work for other companies; (b) has proprietary or ownership interest in their work; and (c) has control over important business decisions, such as the schedul- ing of performance; the hiring, selection, and assignment of employees; the purchase and use of equipment; and the com- mitment of capital.” Atlanta Opera, supra, 372 NLRB No. 95, slip op. at 18 (internal citations omitted). The Board also con- siders entrepreneurial opportunity, but only in assessing wheth- er an asserted contractor is operating as an independent busi- ness, and will “give weight only to actual (not merely theoreti- cal) entrepreneurial opportunities. . .” Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 It appears that KC formed his own business 2 weeks before the hearing in this matter, but he did not own his own business prior to August or September 2023. (Tr. 129-131.) GT did not have his own business when he was classified as an independ- ent contractor. (Tr. 173.) There is a dearth of evidence that KC operates independently as a business owner, or that GT did so before he was reclassified. Although Respondent claims that KC can pursue outside opportunities, it provided no examples of this happening. (Tr. 166, 170–171.) This “merely theoreti- cal” opportunity does not weigh in favor of a finding that he is an independent contractor. Id. at 18. 2. Misclassification is not an independent violation of Section 8(a)(1) After weighing the above factors, I find that Respondent misclassified KC as an independent contractor, and misclassi- fied GT before he was converted to employee status in October 2022. However, I am unable to find that Respondent violated of Section 8(a)(1). In Velox Express, the Board held that an employer violates the Act when it intentionally misclassifies (or reclassifies) em- ployees as independent contractors in response to union or pro- tected concerted activity, or erroneously tells employees that it would be futile to engage in union activity because they are not employees as defined by the National Labor Relations Act. Velox Express, 368 NLRB No. 61, slip op. at 7 (2019). The Board declined to find that misclassifying employees, or erro- neously communicating to them that they are not employees, is an independent violation of Section 8(a)(1). Id., slip op at 7–8. There is no evidence that Respondent misclassified employ- ees to prevent them from organizing or reclassified them in response to union or other protected activity. GT and KC were classified as independent contractors before Hincks and Price arrived on the job site, and GT was reclassified as an employee shortly after they left. Although Balac talked to both Hincks and Price about being classified as independent contractors, when they showed no interest, he supplied them with W4 forms and paid them as employees, so there is no evidence he was trying to misclassify them or misinform them to interfere with their union activity. The General Counsel argues that Velox Express should be overruled, and that Respondent’s misclassification of employ- ees is an independent violation of 8(a)(1). As an administrative law judge, I am bound to follow Board precedent that has not been overruled by the U.S. Supreme Court. The authority to alter existing law rests solely with the Board. See Western Cab Co., 365 NLRB 78, fn. 4 (2017). Therefore, I am unable to find that the misclassification was a violation of 8(a)(1). CONCLUSIONS OF LAW 1. Respondent Atomic Fire Protection, LLC is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Sprinkler Fitters Local 281 (Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Peter Balac is the Project Manager and is a supervisor of Respondent within the meaning of Section 2(11) of the Act and an agent of Respondent within the meaning of Section 2(13) of the Act. 4. On or about September 26, 2022, Respondent coercively interrogated employees regarding their Union activities and sympathies, in violation of Section 8(a)(1) of the Act. 5. On or about October 3, 2022, Respondent coercively in- terrogated employees regarding their Union activities and sym- pathies, in violation of Section 8(a)(1) of the Act. 6. On or about October 4, 2022, Respondent coercively in- terrogated employees regarding their Union activities and sym- pathies, in violation of Section 8(a)(1) of the Act. 7. On or about October 4, 2022, Respondent interfered with or restrained employees in the exercise of their Section 7 rights by telling employees they could not work for Respondent or other non-union companies if they were with the Union, in violation of Section 8(a)(1) of the Act. 8. On or about October 4, 2022, Respondent interfered with or restrained employees in the exercise of their Section 7 rights by telling them that Respondent did not want a union and they could not talk to other employees about unionizing, in violation of Section 8(a)(1) of the Act. 9. On or about October 4, Respondent terminated William Hincks because he engaged in union and protected concerted activity and to discourage employees from engaging in these or other protected concerted activities, in violation of Sections 8(a)(1) and (3) of the Act. 10. On or about October 4, Respondent terminated Darrius Price because he engaged in union and protected concerted activity or because it believed he engaged in such activities and to discourage employees from engaging in these or other pro- tected concerted activities, in violation of Sections 8(a)(1) and (3) of the Act. 11. The unfair labor practices described above affect com- merce within the meaning of Sections 2(6) and (7) of the Act. 12. Consistent with this decision, I dismiss the 8(a)(1) im- pression of surveillance allegation and the 8(a)(1) misclassifica- tion allegation. REMEDY Having found that Respondent engaged in certain unfair la- bor practices, Respondent is ordered to cease and desist and to take certain affirmative action designed to effectuate the Act. Respondent, having unlawfully fired William Hincks and Darrius Price, is ordered to offer them reinstatement to their former position, or if that job no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them. The backpay remedy shall be computed on a quarterly basis, less any interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Thryv, Inc., 372 NLRB No. 22 (2022), Respondent shall also be ordered to make Hincks and Price whole, with interest, for any other direct or foreseeable pecuni- ary harms suffered because of their termination, including rea- sonable search-for-work and interim employment expenses, if ATOMIC FIRE PROTECTION, LLC 15 any, regardless of whether these expenses exceed interim earn- ings. Compensation for these harms shall be calculated sepa- rately from taxable backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Further, Respondent is ordered to compensate Hincks and Price for the adverse tax consequences, if any, of receiving lump-sum backpay awards and to file with the Regional Direc- tor for Region 13, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award(s) to the appropriate calendar year(s) for each employee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). In accordance with Cascades Container Board, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), Respondent is further ordered to file with the Regional Director for Region 13 copies of the employees’ cor- responding W-2 form(s) reflecting their backpay awards. Respondent is also ordered to expunge from its files any ref- erences to the unlawful discharges of Price and Hincks and notify each in writing that this has been done and that evidence of the unlawful actions will not be used against them in any way. Respondent shall post a Notice to Employees, as described in the attached Appendix. This notice shall be posted in the Em- ployer's Riverwoods facility for 60 days without anything cov- ering it up or defacing its contents. In addition to physical post- ing of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. If, during the pendency of these proceedings, the Respondent goes out of business, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and for- mer employees employed by the Respondent at any time since September 26, 2022. When the Notice is issued to the Employ- er, it shall sign it or otherwise notify Region 13 of the Board what action it will take with respect to this decision. The General Counsel and Union also seek a remedy requir- ing the Respondent to hire qualified replacement employees selected by the Union should Hincks or Price elect not to accept reinstatement. However, they have provided no case law or argument in support of this remedy and has not shown why such a remedy would be warranted. Therefore, I deny the re- quest to require Respondent to hire employees selected by the Union. The General Counsel also asks that Respondent be or- dered to send letters of apology, signed by Peter Balac, to Wil- liam Hincks and Darrius Price, with a courtesy copy to the Regional Director. The General Counsel has not demonstrated why this remedy is necessary or how it would serve to remedy the effects of the unfair labor practices on Respondent’s em- ployees. Therefore, this remedy is denied. Finally, the General Counsel and Union seek an Order re- quiring that, at a meeting or meetings scheduled to ensure the widest possible attendance on each shift, a responsible man- agement official read the Notice to Employees on worktime in the presence of a Board Agent and Union representative. A notice-reading remedy is appropriate when it is necessary to ensure that employees “fully perceive that the Respondent and its managers are bound by the requirements of the Act.” Feder- ated Logistics & Operations, 340 NLRB 255, 258 (2003), re- view denied 400 F.3d 920 (D.C. Cir. 2005). I find that a notice reading in the presence of (or by) a Board agent is warranted, but that the General Counsel has not shown why the additional presence of a Union representative is necessary. When a manager is directly responsible for labor law viola- tions, and employees are aware of that manager’s involvement, the Board has found it appropriate to require the manager to read the Notice, or be present while a Board agent reads it, to ensure that the Notice is effective. See Amerinox Processing, Inc., 371 NLRB No. 105, slip op. at 1 (2022) (ordering Re- spondent’s president to read, or be present while a Board agent reads, notice after he told employees they could not talk about the Union, threatened to destroy those who supported the Union and fired 60 percent of company’s union supporters after learn- ing about organizing drive); see also Bozzuto's Inc., 365 NLRB 1444 (2017) (notice reading by respondent's vice-president warranted when he was involved in unfair labor practices that affected majority of employees and sent clear message that union was not welcome); North Memorial Health Care, 364 NLRB No. 61, slip op. at 1 (public notice reading warranted based on public nature of the unfair labor practices, timing, and involvement of upper management in the violations). Peter Balac, who serves as the Project Manager for Re- spondent, committed several serious unfair labor practices in front of his employees when he angrily interrogated and threat- ened Hincks about his union activities, made derogatory com- ments about the Union, and summarily fired Hincks and Price while GT listened. A notice posting is inadequate to reassure employees that Balac will refrain from violating the Act in the future when they heard him interrogate, threaten, and fire other employees for union activity. I therefore order that Balac read the Notice to Employees in the presence of a Board Agent, or, at Respondent’s option, be present while a Board Agent reads the Notice. I further order that the Notice be read in English, and in additional languages if the Regional Director so requires, on worktime at a meeting or meetings scheduled to ensure the widest possible attendance on each shift. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2 ORDER Atomic Fire Protection, LLC and its officers, agents, succes- sors, and assigns shall: 1. Cease and desist from: (a) Coercively interrogating its employees about their union activities or support. (b) Telling employees that they cannot work for Atomic or any other non-union company if they are with the Union. (c) Telling employees that Respondent does not want a un- ion and they cannot speak to other employees about the benefits of organizing. 2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 (d) Firing employees for engaging in union or other protect- ed activities or because Respondent believes they engaged in such activities. (e) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed 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, offer Darrius Price and William Hincks immediate and full reinstatement to their former jobs, or if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights and privileges previously enjoyed. (b) Make Darrius Price and William Hincks whole for any loss of earnings, other benefits, and for any other direct or fore- seeable pecuniary harms resulting from their termination, as provided in the remedy portion of this decision. (c) Compensate Darrius Price and William Hincks for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 13, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). (d) File with the Regional Director for Region 13, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, or such additional time as the Re- gional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days, remove from its files any reference to the unlawful discharge of Darrius Price and William Hincks, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful employment actions will not be used against them in any way. (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 rec- ords, 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 back pay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Riverwoods facility copies of the attached notice marked “Ap- pendix.” Copies of the notice, on forms provided by the Re- gional Director for Region 13, after being signed by Respond- ent’s authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. If, during the pen- dency of these proceedings, the Respondent has gone out of business or closed it Riverwoods location, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 26, 2022. (h) Hold a meeting or meetings during working hours, scheduled to ensure the widest possible attendance of employ- ees at which time the attached Notice to Employees marked “Appendix” will be read to the employees in English (and any other language ordered by the Regional Director) by Peter Balac in the presence of a Board agent. Alternatively, at Re- spondent’s option, the Notice may be read by a Board agent in the presence of Peter Balac. (i) Within 21 days after service by the Region, file with the Regional Director for Region 13 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., December 11, 2023 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 question you about whether you are with a un- ion or support a union. WE WILL NOT tell you that you cannot work for us or any oth- er non-union company if you are with the Union. WE WILL NOT tell you that we do not want a union and that you cannot speak to other employees about the benefits of un- ionizing. WE WILL NOT fire you because you engage in union or other protected concerted activities. 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 offer Darrius Price and William Hincks immediate and full reinstatement to their former jobs, or if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make Price and Hincks whole for any loss of earn- ings and other benefits resulting from their terminations less any net interim earnings, plus interest. WE WILL also make Price and Hincks whole for any direct or foreseeable pecuniary harms they suffered because they were fired, including reason- able search-for-work and interim employment expenses, plus ATOMIC FIRE PROTECTION, LLC 17 interest. WE WILL compensate Price and Hincks for the adverse tax consequences, if any, of receiving lump-sum backpay awards and WE WILL file with the Regional Director for Region 13, within 21 days of the date the amount of backpay is fixed, ei- ther by agreement or Board order, a report allocating the back- pay award(s) to the appropriate calendar year(s), as well as a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award(s). WE WILL remove from our files any reference to the unlawful terminations of Darrius Price and William Hincks, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful employment actions will not be used against them in any way. WE WILL hold a meeting or meetings during working hours and have this Notice read to you and your fellow workers by Respondent’s Project Manager in the presence of a Board agent or, at Respondent’s option, by a Board agent in the presence of Respondent’s Project Manager. ATOMIC FIRE PROTECTION, LLC The Board’s decision can be found at http://www.nlrb.gov/case/13-CA-305638 or by using the QR code below. Alternatively, you can obtain a copy of the deci- sion from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.