NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
A.M. Ortega Construction, Inc. and Southern California District Council
of Laborers, and its affiliated Locals, Laborers International Union of
A.M. Ortega Construction, Inc. and International Union of Operating
Engineers, Local 12; United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, Local Union
250; Southern California District Council of Laborers, Laborers’ International
Union of North America (LIUNA) and its affiliated Locals; Teamsters Joint
Council No. 42, affiliated with the International Brotherhood of Teamsters; and
General Teamsters and Food Processing Local 87, affiliated with the International
Brotherhood of Teamsters and International
Brotherhood of Electrical Workers, Local 47, AFL–CIO, CLC. Cases
21–CA–37055, 21–CA–37167, and 21–RC–20823
May 21, 2007
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By Members Schaumber, Kirsanow, and Walsh
On November 16, 2006, Administrative Law Judge William G. Kocol issued the attached decision. The General Counsel and Charging Party each filed exceptions and a supporting brief. The Respondent filed cross-exceptions and a supporting brief, and answering briefs to the General Counsel’s and Charging Party’s exceptions. The General Counsel and the Charging Party each filed an answering brief to the Respondent’s cross-exceptions, and the General Counsel filed a reply brief to the Respondent’s answer.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings,[1] findings,[2] and conclusions and to adopt the recommended Order as modified and finds that the election must be set aside and a new election held.[3]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, A.M. Ortega Construction, Inc.,
1. Substitute the following for paragraph 1(a).
“(a) Telling employees that they should quit if they support the Joint Petitioners, International Union of Operating Engineers, Local 12; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 250; Southern California District Council of Laborers, Laborers’ International Union of North America (LIUNA) and its Affiliated Locals; Teamsters Joint Council No. 42, affiliated with the International Brotherhood of Teamsters; and General Teamsters and Food Processing Local 87, affiliated with the International Brotherhood of Teamsters.”
2. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its facility in
3. Substitute the attached notice for that of the administrative law judge.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the first election and who retained their employee status during the eligibility period and their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by the International Brotherhood of Electrical Workers, Local 47, AFL–CIO, CLC, or the joint petitioners, International Union of Operating Engineers, Local 12; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 250; Southern California District Council of Laborers, Laborers’ International Union of North America (LIUNA) and its Affiliated Locals; Teamsters Joint Council No. 42, affiliated with the International Brotherhood of Teamsters; and General Teamsters and Food Processing Local 87, affiliated with the International Brotherhood of Teamsters, or neither.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB
v. Wyman-Gordon Co., 394
Dated,
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
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 benefit and protection
Choose not to engage in any of these protected activities.
We will not tell employees that they should quit if they support the Joint Petitioners, International Union of Operating Engineers, Local 12; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 250; Southern California District Council of Laborers, Laborers’ International Union of North America (LIUNA) and its Affiliated Locals; Teamsters Joint Council No. 42, affiliated with the International Brotherhood of Teamsters; and General Teamsters and Food Processing Local 87, affiliated with the International Brotherhood of Teamsters.
We will not tell employees that it would be futile for them to support the Joint Petitioners.
We will not threaten to fire employees because they support the Joint Petitioners.
We will not threaten to close our doors rather than sign a contract with the Joint Petitioners.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
A.M. Ortega Construction, Inc.
Alan L. Wu, Esq., for the General Counsel and Regional Director.
Richard M. Freeman, Esq., Carole M. Ross Esq.,
and David Chidlaw, Esq. (Sheppard,
Mullin, Richter & Hampton LLP), of
Steven T. Nutter, Esq. (Reich, Adell, Crost
& Cvitan), of
Bernhard Rorhbacher, Esq. (Rothner, Segall,
& Greenstone), of
DECISION
Statement of the Case
William G.
Kocol, Administrative Law Judge. This case was tried in
A representation case is consolidated with the complaint. The Joint Petitioners filed the petition on April 19, the parties signed a stipulated election agreement on August 17, and the election, held on September 21, showed that 17 employees voted for the Joint Petitioners, 21 employees voted for Local 47, and no employees voted against union representation. There were four challenged ballots, but at the hearing in this case the parties stipulated that one of the challenged voters, Oscar Ruvalcaba, was a supervisor and therefore the challenge to his ballot should be sustained. As a result, the number of challenged ballots is no longer determinative and the remaining challenges need not be resolved. The Joint Petitioners filed 17 separate objections to the conduct of the election. The Regional Director referred 14 of the 17 to hearing. In their brief the Joint Petitioners withdrew four more objections. Some of the objections mirror the allegations in the complaint. The remaining objections that warrant discussion concern a grant of substantial wage increases to unit employee a week before the election and granting Local 47 preferential access to employees on its property and on working time.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent,2 Joint Petitioners, and Local 47, I make the following
Findings of Fact
i.
jurisdiction
Respondent, a corporation, performs dry underground utilities
installation in the construction industry from its facility in
ii. alleged
unfair labor practices and
objectionable conduct
A. Background
As indicated, Respondent is in the business of dry underground
utilities installation and has been in business for about 32 years. It has facilities in
As indicated, the complaint case centers on allegations that Respondent unlawfully failed to recall Marquez and Pasos from layoff. Respondent does not have a formal layoff or recall policy. As work diminishes employees are laid off based on need and the skill level of employees. The layoffs may range from a day or two to much longer periods of time. Likewise, employees are called back to work based on Respondent’s needs and the skill level of the employees. Respondent is free to, and has, hired new employees rather than recall existing employees from layoff. But as Carillo stated, he generally tries to recall all laid off employees. Carillo has told laid off workers that the best way to get work is to show up in the morning because often employees call in sick or a foreman forgets to tell him that another worker is needed on the site. He testified that even after employees were terminated they remained eligible to return to work. Respondent pays its employees a required minimum but grants raises based on merit.
Respondent’s main customer is San Diego Gas and
Electric. On December 16, 2004, the
Public Utilities Commission of the State of
According to Ortega a number of employees had complained
that they preferred Respondent’s old health insurance provided by Kaiser to the
health insurance provided under the collective-bargaining agreement with Local
47. In about December 2004, Ortega
called Tom Brown, Local 47’s negotiator, and asked if Respondent could provide
its own health care coverage. According
to Ortega, Brown said that he thought that could be done and he would look into
it. Ortega and Flores met with Brown in
about January 2005. At that meeting
Brown gave Ortega and
According to Ortega, the next meeting occurred at Respondent’s
counsel’s office. Ortega, Flores, and
Richard Freeman, Respondent’s counsel, were present for Respondent; Brown and
Pat Lavin, business manager, were present for Local 47. No agreement was reached at that time. At some point thereafter the
B. Events Before the Election
Jonathan Osorno worked for Respondent as a laborer and pipe layer from August 2004, to mid-June 2005, at which time he quit and started working for an employer whose employees were represented by Local 89. While still employed by Respondent, Osorno attended meetings held by Local 89 about once a week. Local 89 had invited the foremen to attend the meetings and Osorno saw Ruvalcaba at the meetings about four or five times. About a month before the election Ruvalcaba and he were driving together to a jobsite when Ruvalcaba said that the election was coming up and asked what union Osorno was supporting. Osorno replied that he was supporting Local 89. Ruvalcaba said that he was supporting Local 47. Ruvalcaba unconvincingly denied making these remarks. Osorno, on the other hand, impressed me as a credible witness in this instance and other instances described below.
An issue raised by the objections concerns whether Respondent
granted Local 47 preferential access to its property to meet with employees on
paid time. Brandon Jones worked as an
operator for Respondent from January 2003, until mid-June 2006. According to Osorno and Jones, their foremen
told them that there would be a meeting held in Respondent’s yard beginning at
7 a.m., the employees’ normal starting time.
The meeting occurred on August 26, unit employees attended this meeting,
and it lasted about an hour. The
employees were paid for this time.
Representatives from Local 47 were there, including Business Manager Pat
Lavin, Senior Assistant Business Manager Chet Bennett, and Organizer Richard
Garcia. They told the employees of a
contract that Local 47 and Respondent had agreed upon and that would be applied
to them if they voted for Local 47 in the election. They handed out copies of a portion of the
purported agreement. At that time Osorno
was making $17 per hour; according to the contract he would be getting $21.33
per hour. Jones was making $23 per hour;
under the contract he would receive $31.
During the meeting the Local 47 representatives said that the health insurance
would be switched back to Kaiser. This
was viewed by employees as an improvement because there was dissatisfaction
with their existing health care plan. As
a result of the switch $1.37 per hour was saved; the Local 47 representatives
explained that the employees could choose to receive that as pay or apply it
towards a vacation fund or a 401(k) plan.
The facts in the preceding paragraph are based on the credible
and mutually corroborative testimony of Osorno and Jones. Ruvalcaba attended this meeting. Although Ruvalcaba’s recollection of the
details of this meeting was hazy, he in general corroborated the testimony of
Osorno and Jones except that he testified that the Local 47 representatives said
that they would try and obtain the benefits for the employees rather than indicating
that the employees would receive the benefits.
Concerning the time of the meeting, Ruvalcaba initially testified that
the meeting started somewhere around 7 a.m.
But later when questioned by Respondent’s counsel he testified that the
meeting started between 6 and 7 a.m. and that it was before the workday
started. I credit the testimony of
Osorno and Jones when it conflicts with Ruvalcaba’s shifting testimony concerning
this meeting. Garcia testified that he
arrived at the facility around 5:45 a.m.
He then said he arrived around 5:30 a.m. and that the meeting began
around 6 a.m. after the employees arrived.
Garcia testified that the meeting lasted about 30 minutes, but then said
it lasted 35–40 minutes at the most and that all the Local 47 representatives
left the yard before 7 a.m. Garcia
denied that he or the other Local 47 representatives ever told the employees
that Local 47 had a new signed contract with Respondent. When workers asked if the wages in the
proposed contract would be the wages that the employees would receive, Garcia
claims that they were told that it would be decided in negotiations with
Respondent. But earlier in his testimony
Garcia was asked whether the papers shown to employees represented what the
employees would get if they voted for Local 47, Garcia answered “yes.” Garcia impressed me as someone testifying in
a manner consistent with a stated position rather than relating the facts; I give
it little weight. Lavin testified that
he told the employees that these were the types of benefits and wages that they
were trying to get in a contract with Ortega.
Ortega testified that he never allowed Local 47 to come on Respondent’s
property and meet with employees on working time. He claimed that Local 47 began its meeting
with employees at the yard at 6 a.m., but when asked whether he saw Local 47 making
a presentation to employees after 7 a.m. Ortega stated “I don’t believe so.” Vice President Flores testified that he
arrived at the yard around 6:15 a.m. and the meeting between Local 47 and the
employees had already begun.
After the meeting with Local 47 representatives described,
Osorno was talking to his foreman when Vice President Flores joined them. After Osorno and his foreman finished their
conversation,
Continuing on with the claim of unequal access, on August 25, Local 89 sent Respondent a letter indicating that it had learned that Local 47 had been granted access to Respondent’s property to speak to employees during working and nonworking time. Local 89 requested the same access. On August 30, Respondent replied by letter claiming that it had allowed Local 47 access on August 26 from 6 to 7 a.m. “off the clock” to employees who voluntarily decided to attend. Respondent said that it would allow Local 89 the same access on September 2. On August 31, Local 89 wrote back that Respondent was incorrect in claiming that Local 47 had been granted access during nonworking time but that Local 89 would nonetheless meet with employees at the time offered in the earlier letter. Local 89 closed by stating that Respondent should notify its employees of the September 2 meeting as soon as possible. On September 2, Ortega testified that he arrived about 5:30 a.m. and noticed Cruz in the yard. He told Cruz not to come onto the property until 6 a.m. and to leave the property at 7 a.m. However, according to Juan Cruz, an organizer, after Local 89’s representatives arrived on September 2, Ortega told them that they needed to stay outside the property until 7 a.m. At 7 a.m. they went on the site and spoke to about 10–12 employees who were there. Moreover, Jones testified that this meeting too started at 7 a.m. and he was paid for the time. In sum, the letter and Ortega’s testimony indicate that the meeting occurred before working time, but the testimony from Local 89 and an employee supporter claim that their meeting occurred on working time! I explain my resolution of this issue below.
About a week before the election Ruvalcaba asked Jones about the meeting the night before with Local 89. After Jones told him what had happened Ruvalcaba said it was the same stuff that Local 89 was always saying. Ruvalcaba said that Ortega would never sign a contract with Local 89 and that Ortega would rather close his doors than sign a contract with Local 89. He said that it could take up to a year before Ortega signed the contract. Ruvalcaba said that the employees should just take the contract that Ortega had already signed with Local 47. Ruvalcaba accused Jones of telling employees that Ruvalcaba was spreading misinformation concerning what Ortega would do; Jones denied that. Ruvalcaba then said that Jones would “be one of the first fucking ones to go.” Ruvalcaba was speaking loudly and appeared to be angry. Ruvalcaba testified that the employees, including Jones, were talking how they would make more money with Local 89 as their representative. Ruvalcaba claims that he told them if everyone would be making more money with Local 89 then Ortega would have to bid his jobs higher because the employees were making more money and that the employees might be then sitting at home. Ruvalcaba testified that Jones became upset and started cursing and he did not continue to talk to Jones because Jones looked like he was getting aggressive. I credit Jones’ testimony over Ruvalcaba’s. Jones’ demeanor was sincere; Ruvalcaba appeared to be calculating his testimony to avoid crossing the line into illegality.
Normally employees receive their paychecks first thing Friday
morning at the jobsites from the foremen.
It will be recalled that Respondent was attempting to ascertain precisely
what the prevailing wages were that it should pay its employees and had been
meeting with Local 47 to discuss a new contract. That new contract was not to succeed the existing
contract set to expire November 30, but to supersede the existing
contract. On September 14, a week before
the election, Ortega accompanied by
At a meeting held the day before the election, Ruvalcaba told some employees that he did not want to go into Local 89 because he did not know how long it would take for Ortega to sign a contract and he did not want to be short of work, so he thought that Local 47 was the safest way to go for him. Ruvalcaba said that he wasn’t sure if there would be work for at least a year. According to Osorno, Ruvalcaba was sitting at a table with a copy of a Local 89 contract and slammed his hand on the table and was speaking loudly. Ruvalcaba denied making these remarks or slamming his hands on the table. I again credit Osorno’s testimony over Ruvalcaba’s.
C. George Marquez and Steven Pasos
George Michael Marquez had worked for Respondent on and off since 2001. He was hired as a foreman but later worked as an operator. Most recently he made $18 per hour, the lowest rate among Respondent’s operators. Marquez attended four or five meetings held by Local 89 and spoke at these meetings about his failure to get health insurance and low wages. Respondent’s foremen, including Ruvalcaba, attended those meetings. Marquez wore a Local 89 baseball cap at work. On about August 1, Marquez was laid off. Other employees were laid off at the same time and there is no contention that Marquez’ lay off was unlawful. On August 5, Marquez began working for another employer at the rate of $41 per hour. As explained below, an issue in this case is whether Marquez called Respondent after the layoff to seek work. Marquez testified that he called in regularly to see if there was work for him but he only was able to reach Carillo’s voice recording so Marquez left messages. Carillo testified he did not recall getting voice messages from Marquez that indicated “a desire to work.” Carillo’s mobile telephone records do not show any calls from the telephone number Marquez listed as his on his employment application; all calls from Marquez to Carillo occurred only before his layoff. As Respondent points out in its brief, although Marquez was recalled by the General Counsel as a rebuttal witness, he made no effort to explain why his telephone number did not appear on Carillo’s telephone records. In his brief the General Counsel points out that there are several possible explanations as to why Marquez’ number appears on Carillo’s phone records only before and not after the layoff. Indeed there are. But the point is that findings of fact need to be based on evidence and not speculation. In the absence of any explanation to the contrary, Marquez’ telephone records were surely available to him and the General Counsel as a basis of confirming his testimony concerning the telephone calls. The failure to produce these records undermines Marquez’ testimony.
Marquez testified that about 2 weeks after the election he did reach Carillo by telephone. Marquez claims he asked Carillo that since the “union stuff” was over could he come back to work. Carillo answered that he did not have any work. Carillo testified that he could not recall any telephone calls from Marquez after the election. Marquez’ testimony is not credible. The likelihood that he would ask for his job back at Respondent and give up his job at $41 per hour is remote at best. And Marquez’ testimony that he was able to reach Carillo on this single occasion after having been unable to reach him on all his previous attempts rings hollow. I conclude that Marquez made little, if any, effort to get his old job back.
On September 14, Carillo signed a form indicating that Marquez was terminated. The form indicated that Marquez last worked August 1, and was terminated because of “lack of work. Also no-call and no-show.” Thereafter Marquez voted without challenge at the election on September 21.
Carillo testified that he terminated Marquez because at that time there was no work on the horizon and that considering the new wage rates he would not be able to employ Marquez at those rates. Carillo conceded that after he terminated Marquez, he hired Eric Sanchez as an operator; Sanchez was referred to Carillo by a foreman he had recently hired. Carillo tested Sanchez’ work for about an hour and concluded Sanchez did extremely well. In early 2006, Carillo hired another operator, Ernie Tripp. Carillo had worked with Tripp 15 years earlier and knew him to be an experienced, good operator.
On February 7, 2006, Carillo called Marquez and offered him work. Marquez said that he was doing a side job for his brother but he would come in on February 9 to discuss the job offer. Marquez called on February 9, and said that he was still working on the side job and the soonest he could be in was February 13. On the 13th, Marquez did appear at the facility. Marquez told Carillo that he had been working as an excavator earning $41 per hour. Carillo explained that he did not have an operator’s position available but was offering Marquez a position as a laborer. Marquez declined the offer. About 2 or 3 weeks later Marquez called and told Carillo that he wanted to accept the offer of employment as a laborer. Carillo replied that they did not need help at that time but Marquez was free to submit an application and Carillo would review it. Marquez then did complete an employment application on March 8, 2006, seeking work as an operator. The facts in this paragraph are based on Carillo’s credible and largely uncontested testimony.
At the hearing Respondent presented evidence that Marquez was a poor employee and that was a reason why he was not called back to work. Ruvalcaba claimed that Marquez’ performance was not very good. He pointed to an instance when Marquez was working as an operator lifting a two-ton trench plate and Marquez dropped the plate from a height of 6 feet and “almost killed somebody.” Marquez admitted he dropped a plate, but claimed it was from a height of about 2 feet and no one was endangered by the drop. Ruvalcaba also claimed that Marquez had a hard time wearing his hard hat and safety vest and that he swung his bucket too quickly and almost injured someone a couple of times. Again, Ruvalcaba’s testimony strikes me as exaggerated. David Vincent Hitzeman has worked for Respondent for 24 years; for the last 13 years he has worked as a foreman. Hitzeman worked with Marquez three or four times. Hitzeman testified that he watched the way Marquez operated the backhoe and move plates and concluded it was a hazard and that he would rather do the task himself. Hitzeman testified that Marquez rarely lasted more than a day on his crew. He claimed that Marquez could not load a truck, was slow digging, and always had to be told what to do. Hitzeman told Carillo of his problems with Marquez’ work performance. Carillo testified that Marquez was used on simpler jobs because he could not operate as expected on more difficult jobs such as street conversions. Carillo testified that Hitzeman reported to him that Marquez was not very safe when transporting steel plates and Marquez was slow in trenching on street conversion jobs. Ruvalcaba also complained about Marquez’ work to Carillo. According to Carillo, Foreman Jeff Garrison repeatedly asked if he could get another operator to replace Marquez on his crew. Carillo told Garrison that he did not have a replacement and that Garrison had to work with what he had. According to Marquez, no supervisor ever told him that they did not like his work, but he later admitted that in 2004 he was reprimanded for failing to wear a hardhat on a jobsite.
Steven Pasos Jr., began working for Respondent as a laborer in June 2003: he had also worked there years earlier. Pasos attended about 12–13 meetings sponsored by Local 89. From 5–6 to 10–13 employees attended these meetings. Pasos asked questions at these meetings about what benefits the employees would receive if Local 89 was selected. But Pasos did not publicly reveal at these meetings how he intended to vote. As indicated, Ruvalcaba and other foremen also attended some of these meetings.
On about August 8, Carillo told Pasos that work was slowing and thereafter Pasos did not receive any more work assignments. As with Marquez, there is no contention that Pasos’ lay off was unlawful. Pasos testified that he called Carillo the following work day and asked if there was work, but Carillo again said things were slow. Pasos claimed that he called several times that week and received the same response, so he asked Carillo to call him if any work came in. However, Carillo’s mobile telephone records indicate that while Pasos called Carillo before his lay off he did not call during the days after his lay off. In this regard the records show that earlier Pasos was temporarily off due to lack of work but called Carillo on July 21 and 22; Pasos returned to work the following Monday.
On about August 11, Carillo called Pasos and asked if he wanted to attend a flagging class. A flagger is a person who does traffic control and Respondent was contemplating a bid on some flagging work with SDG&E. Carillo called Pasos because he thought it was a good opportunity for Pasos to continue to work for Respondent. Pasos and other employees attended the class. Ultimately, Respondent did not get the flagging contract. According to Carillo, after he spoke to Pasos about the flagging training he never heard from Pasos again until after the election.
Pasos was subpoenaed by Local 89 to appear at a hearing on August 17 in the representation case; Pasos appeared as required but the hearing was not held because the parties stipulated to an election. Pasos sat in the back of the crowded hearing room with other employees; Ortega sat in the front at a table with his back to Pasos and the other employees. Ortega testified that he noticed only two employees from Respondent at the hearing, Bruce Dobbs and Kyle Keil. Keil was an open supporter of Local 89 and told Ortega of this. Keil continued to work for Respondent throughout this period. I credit Ortega’s testimony that he did not observe Pasos in the crowded room.
On September 14, Carillo signed a form indicating that Pasos was terminated. The form indicated that Pasos last worked August 8 and was terminated because of “lack of work. Also no-call and no-show.” Carillo explained that he had not heard from Pasos for over a month and other laborers were coming in and checking if there was work.
Pasos was an observer on behalf of Local 89 and voted without challenge at the election on September 21.
After several weeks Pasos still had not received his
certification card for the flagging class.
He called Carillo who said the certification card was in the office, so
Pasos went to the facility to pick it up.
While at the facility Pasos noticed that other employees who had been
laid off with him had returned to work.
While he was there Pasos spoke to
On February 7, 2006, Carillo called Pasos and asked if Pasos was working. Pasos said that he was, and that it was with an employer who recognized Local 89. Carillo said that Respondent had work and offered Pasos employment, but he declined. On February 13, Pasos called Respondent and claimed that he had been laid off on February 8, and now wanted to return to work. Carillo asked Pasos to report to work on February 15. On February 14, Pasos called and asked what the pay rate would be; he was told it would be $16.37 per hour compared to the $15 he was making before his lay off. The new rate was for the same position Pasos held before the layoff. Pasos then said he would not work at that rate and did not appear for work. These events were set forth in a letter that Carillo sent to Pasos on about February 15; Pasos never disputed the contents of the letter. I credit the letter and Carillo’s testimony about these events over Pasos’ incomplete description.
Ruvalcaba testified that in his opinion Pasos’ work performance was less than average. He claimed that Pasos would mix up the pipe that was being laid so he would have Pasos sweep the streets and organize the yard. Pasos admitted that on a couple of occasions he made mistakes in handling conduit and Ruvalcaba spoke to him about it. He remembered another occasion where Ruvalcaba told him that he was messing up. Pasos related an incident in April, before the organizational campaign began, when he asked Carillo for a raise. Carillo answered, in a sarcastic tone “oh yeah, I’ll think about it.” Pasos took this as a negative comment on his work performance. From time-to-time Hitzeman has been foreman of crews that included Pasos. Hitzeman testified that he thought Pasos was lazy, did not really have knowledge of the industry, and was difficult to keep busy. Hitzeman testified that Pasos did not know the difference between pipes, why they were working there or what they were doing, so Hitzeman kept Pasos busy doing simple tasks. Hitzeman also asked Carillo to move Pasos from his crew to other sites. Carillo testified that when work got slow and the foremen began to select who they wanted to work with Pasos was rarely selected. The foremen explained to Carillo that Pasos’ skill level was not up to the level of other laborers. They frequently used Pasos to sweep around the work site, performing flagging, or act as a gopher. Neither Pasos nor Marquez received merit pay increases that other workers received above the minimum.
As indicated, Respondent presented testimony purporting to show that Marquez and Pasos were not recalled from lay off because they were poor performers. But in a statement of position submitted during the investigation of these cases Respondent stated that Marquez and Pasos “did not regularly contact the company to express their interest in returning to work if business picked up. As a result, they were not recalled.” There is no mention of poor performance.
Respondent did not give any written reprimands to Pasos for his alleged poor work and, except for the instance of not wearing a hardhat; Respondent did not give written reprimands to Marquez either. Respondent, however, did give written reprimands to other employees. For example, on July 20, 2004, Respondent gave Jesse Chairez a written reprimand and a 1-day suspension for failing to lock an air compressor. On July 11, 2003, Respondent gave Chairez a written reprimand and 3-day suspension for “not exposing wire by hand and hitting 6” PE with backhoe.” On April 18, 2005, Jeff Garrison received a written warning for leaving an air compressor on a jobsite resulting in the loss of the compressor at a cost of $13,500. Garrison received a 3-day suspension on February 22, 2006, for a safety infraction involving his failure to shore up a trench. On November 17, 2005, Ray Gutierrez received a written warning for hitting a water line. Wade Koons received a written warning for making a bad gas fit. On July 5, 2004, Ruvalcaba received a written warning not wearing a hardhat. Other similar instances of discipline for poor work are documented in the record. There is no evidence that Respondent failed to recall any of these employees from lay off as a result of their poor work performance.
Concerning the availability of work after the layoffs, Carillo keeps a list of employees who are off from work, including those who are off because of lack of work. By September 19, no employees remained on Carillo’s off list due to lack of work although thereafter there were times when employees were off due to lack of work. By the final quarter in 2005, three new names appear as employees in laborer positions—Gonzalo Martinez, Tyler Marino, and Omar Martinez. I conclude that the lack of work that led to the early August layoffs ended on about September 19.
Carillo testified that he was unaware of the union sympathies of either Marquez or Pasos when he laid them off and later terminated their employment.
iii. analysis
As described above, about a month before the election Ruvalcaba and Osorno were driving together to a jobsite when Ruvalcaba said that the election was coming up and what union did Osorno support. Osorno replied that he was supporting Local 89. Ruvalcaba said that he was supporting Local 47. The General Counsel and the Joint Petitioners contend that these remarks were an unlawful interrogation. In determining whether questioning of an employee concerning the employee’s union sympathies violates the Act, the Board examines all relevant circumstances surrounding the questioning. Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Here, the questioning was conducted by a low-level supervisor. In fact, Ruvalcaba had been invited to attend the Local 89 meetings and did so. He and the other foremen expected to vote in the election and the employees knew this. The questioning occurred in a truck as Osorno and Ruvalcaba were driving to a jobsite. Osorno, an open supporter of Local 89, honestly answered Ruvalcaba’s question and then Ruvalcaba volunteered his support for Local 47. The discussion then ended. Under these circumstances I conclude that the questioning was not coercive and did not violate the Act or constitute objectionable conduct.
I have described above how on August 26, Flores said that
if the workers wanted to join Local 89 so badly, why they didn’t just quit the
company and go to work for a company that had Local 89. The complaint alleges that
The Joint Petitioners claim that Respondent engaged in objectionable conduct by granting Local 47 preferential access to employees on its property and on working time. I have concluded above that Respondent did grant Local 47 access to employees on August 26 during working time. I have also concluded that Respondent granted the Joint Petitioners access to its property on September 2. But there is conflicting testimony concerning when the meeting on September 2 actually began. The Joint Petitioners bear the burden of persuading that objectionable conduct has occurred sufficient to affect the election results. Progress Industries, 285 NLRB 694, 700 (1987). In this instance the testimony of the Joint Petitioners’ agent and the testimony of an employee supporter is that the Joint Petitioners did get access on September 2 during working time. Under these circumstances I conclude that the Joint Petitioners have failed to meet their burden on this issue. Next, the Joint Petitioners contend that the Respondent’s “grant of a noticed meeting during work time” (emphasis added) to Local 47 while denying the same to the Joint Petitioners improperly affected the election outcome. They rely on the testimony of Osorno and Jones that they learned of the meeting with Local 47 from their foremen. But there is no stipulation or proof that all foremen are supervisors or agents of Respondent. And even if the foremen are supervisors, the evidence shows that they were invited to meetings with Local 89 and Local 47 and expected to vote in an election. So I decline to infer that Osorno’s and Jones’ foremen learned of the meeting from Respondent as opposed to from Local 47 or other employees. In sum, this objection should be overruled.
The complaint alleges Respondent unlawfully threatened to discharge Jones. I have found above that about a week before the election Ruvalcaba angrily told Jones that he would be one of the first to go. In the context of that discussion, this was a threat to fire Jones because he supported Local 89. This statement violates Section 8(a)(1). Electric Hose and Rubber Co., 262 NLRB 186, 201. Ruvalcaba also said that Ortega would never sign a contract with Local 89. This statement signals employees that it would be futile to support the Joint Petitioners; it also violates Section 8(a)(1). Baby Watson Cheesecake, Inc., 320 NLRB 779, 785 (1996). Although the complaint alleges that Ruvalcaba made that statement on or about September 21, and I have concluded that the statement occurred on about September 14, I find that the complaint allegation is broad enough to cover this violation. Finally, Ruvalcaba said that Ortega would close its doors rather than sign a contract with Local 89. This threat of plant closure if the employees selected Local 89 as their collective-bargaining representative violates the Act. DeCasper Corp., 278 NLRB 143, 146 (1986). The last violation was not alleged in the complaint. However, it was part of the same conversation as the other violations which were alleged in the complaint. They are all closely related and were fully litigated. Under these circumstances it’s proper to find the additional violation. Pergament United States, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
Joint Petitioners argue that the general wage increase improperly
affected the elections results. A grant
of new or enhanced benefits to employees for the purpose of influencing how the
employees vote in an election is unlawful.
NLRB v. Exchange Parts Co., 375
I turn now to examine the reasons proffered by Respondent to explain the raises. First, as Joint Petitioners point on in their brief, Respondent initially took the position in response to the objections that it was under an “already existing duty to comply with obligations imposed by its customer . . . that were previously set to become effective on September 1, 2005,” pursuant to PUC order of December 16, 2004. But the evidence adduced at the hearing does not support the contention that there was any such duty to act by September 1. Indeed, in its brief Respondent no longer makes this argument. The very fact that Respondent asserts a justification and then abandons it indicates to me that Respondent is still searching for a lawful explanation. Respondent argues that it was required to grant the wage increases pursuant to the PUC’s ruling and as required by the SDG&E. However, those requirements were imposed in late 2004 and early 2005; the wage increases were given in mid-September. Moreover, the directives from the PUC and SDG&E were imprecise concerning the amount of increases that Respondent was required to give to the employees. Indeed, as pointed out above, on September 12, 2 days before it granted the wage increases, Respondent’s counsel sent a letter asking the DIR for information concerning the prevailing rates. Nothing from the PUC or from the SDG&E explains the magnitude or timing of the wage increases. Respondent cites Tinius Olsen Testing Machine Co., 329 NLRB 351 (1999). In that case the employer negotiated a new successor collective-bargaining agreement with the incumbent union that provided for retroactive wages increases. The employer paid the employees the retroactive wage increases the first payroll period after the new contract was ratified. The Board held that the grant of wage increases did not improperly affect the results of the election. Here, there is no evidence whatsoever that the wage increases were granted pursuant to a successor collective-bargaining agreement. Rather, the discussion between Respondent and Local 47 centered on a contract to supersede the existing contract before it expired. Respondent certainly had no legal requirement to do that. Moreover, Respondent never established that even a superseding contract was entered into. Respondent did not place in evidence a signed copy of that agreement and I decline to find one existed based solely on the self-serving statements of the parties with a stake in this litigation. I conclude that Tinius is not on point. Having rejected the reasons proffered by Respondent, I conclude that Respondent’s grant of the wage increases on September 14 was improperly designed to, and did, affect the results of the election.
Next, the General Counsel contends that on the day before the election Ruvalcaba again unlawfully threatened that Ortega would not sign a contract with Local 89 or that it might take a year to do so. I have already found that Ruvalcaba made such an unlawful statement on about September 14. Moreover, in this instance Ruvalcaba told employees that he did not want to go into a labor union because he did not know how long it would take for Ortega to sign a contract and he did not want to be short of work, so he thought that Local 47 was the safest way to go for him and he did not know how long it would take Ortega to sign the contract. So Ruvalcaba’s statements this time were more ambiguous. In any event I need not resolve this contention because it will not affect the remedy.
In determining whether Respondent unlawfully failed to recall Marquez and Pasos from lay off I use the analytical framework described in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management, 462 U.S. 393 (1983). Generally, the General Counsel must show that the alleged discriminatees engaged in union activity, the employer knew of the activity, and the employer was hostile to union activity. Here, both Marquez and Pasos attended meetings on behalf of Local 89 and spoke at those meetings, but so did many other employees who were recalled from layoff. Marquez wore a cap with Local 89’s name on it, but there is no evidence that anyone spoke to him about the cap or otherwise noticed the name on the cap. While Pasos attended the representation case hearing, he was part of a crowded room and I have determined that Ortega did not see him there. In other words, the union activities of Marquez and Pasos were minimal. Carillo testified that he was unaware of the union sympathies of either Marquez or Pasos when he laid them off and later terminated them. I credit that testimony. I do so not only based on my observation of Carillo’s demeanor, but also because the inherent probabilities support that conclusion. I have already noted that Marquez’ and Pasos’ union activities were minimal and not of a nature to have them stand out as Local 89 supporters. Also, I think it is highly significant that Carillo called Pasos in the days following his layoff to encourage Pasos to take a flagging class; this is hardly consistent with someone set on a path to discriminate against Pasos. While there is evidence that Ruvalcaba also attended some of the Local 89 meetings it does not always follow as a matter of law that I must infer that Carillo learned of this directly or indirectly from Carillo. Music Express East, 340 NLRB 1063 (2004); Dr. Phillip Megdad, D.D.S., 267 NLRB 82 (1983).
In concluding that the General Counsel has not met his burden under Wright Line, I have considered the argument that Respondent gave shifting explanations concerning its failure to recall Pasos and Marquez. Respondent contends that Marquez and Pasos were marginal employees and therefore were not recalled. But this reason did not appear on the termination form or in Respondent’s statement of position. And while it appears that Pasos and Marquez were not among the best of employees, other employees had received discipline for poor work yet continued to work. I conclude that this contention was made up after the fact. Also, on the termination forms dated September 14, Respondent refers to lack of work. But I have concluded that work began to pick up by September 19 and all other laid off employees had returned to work. So this justification is simply false. Normally these findings would support a conclusion of discriminatory conduct. But the fact remains that on the termination form, in its statement of position, in its comments to Pasos, and at the hearing Respondent has consistently maintained that a reason for failing to recall Pasos and Marquez is that they failed to show an interest in returning to work by failing to call in. I have concluded above that Pasos and Marquez made little effort, if any, to return to work. So this is not a case where Respondent has gone from one justification to the next; rather, although Respondent has added on justifications, it has consistently provided the same reason for its failure to recall the two employees. Under these circumstances I decline to infer discriminatory motive from the multiple explanations. I dismiss these allegations. Because I have concluded that Carillo did not see Pasos at the representation hearing I dismiss the 8(a)(4) allegation also.
Conclusions of Law
1. By the following conduct, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
(a) Telling employees that they should quit if they supported the Joint Petitioners.
(b) Telling employees that it would be futile for them to support the Joint Petitioners.
(c) Threatening to fire employees because they support the Joint Petitioners.
(d) Threatening to close its doors rather than sign a contract with the Joint Petitioners.
2. Respondent’s grant of the wage increases on September 14 was improperly designed to, and did, affect the results of the election.