A. Montano Electric

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 612 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
Jose A. Montano d/b/a A. Montano Electric and In-
ternational Brotherhood of Electrical Workers,
Local 441, AFL–CIO

Jose A. Montano d/b/a A. Montano Electric and In-
ternational Brotherhood of Electrical Workers,
Local 11, AFL–CIO. Cases 21–CA–31126 and
21–CA–31128
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On September 19, 1997, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings,1 and conclusions only
to the extent consistent with this decision, and to adopt
the recommended Order.
The judge has concluded, inter alia, that the Respon-
dent did not violate Section 8(a)(3) of the Act by denying
five union-affiliated electricians the opportunity to work
overtime on January 4, 1996, and by terminating them on
January 6, 1996. As discussed below, we agree with
these conclusions but we do not rely on the judge’s ra-
tionale.
A. Montano Electric is a small, nonunion electrical
contractor based in Anaheim, California. Jose A.
Montano is the sole proprietor of the Respondent. At
relevant times, the Respondent’s core work force con-
sisted of journeyman electrician Montano, helpers Javier
Arevalo (Montano’s son) and Nelson Amaya, and esti-
mator Bob Florin. Montano hired other electricians,
helpers, and laborers as needed to meet current job de-
mands.
In December, Montano hired alleged discriminatees
Mike Kaspar, Fred Young, and Gilbert Rojo as additional
electricians.2 Kaspar and Young, both members of
IBEW Local 441, began work in early December and
performed satisfactory work at various jobsites during
that month. Rojo, an organizer for IBEW Local 11, be-
gan work for the Respondent on a couple of small jobs
on December 29.3 Throughout the month, none of these
employees engaged in overt union activities, and
Montano was unaware of their union affiliation.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Drywall 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 Montano also hired electrician Rick Soriano as the foreman for a
job at Irvine Valley College.
In mid-December 1995, Montano was awarded the
subcontract for electrical work on a project at the J. H.
Frances Polytechnic High School in Sun Valley, Califor-
nia. The Sun Valley project was scheduled to begin dur-
ing students’ winter holiday vacation period. In apparent
concern about the safety of having open trenchwork
when school was in session, there was a firm deadline of
January 8, 1996, the date classes were to resume, for the
completion of all underground electrical work.
Montano, Young, and Kaspar worked a few hours at
the Sun Valley site on some days in late December.
Trench excavation for the installation of underground
electrical wiring conduits began on approximately De-
cember 27. The project entailed a main trench and five
other trenches of varying size and length.
On Tuesday, January 2, Montano assigned Young and
Rojo to work at the Sun Valley jobsite. That morning,
the Los Angeles Unified School District site inspector
determined that the main trench excavated by Montano
was unsafe. He ordered Montano employees to vacate
the trench. Independently, Rojo had phoned the Califor-
nia OSHA to complain about the trench. An OSHA offi-
cial arrived mid morning and “red-tagged” the trench,
closing it until proper shoring and other safety measures
were in place.4 Other conduit trenches remained open.
There is no evidence that Montano was aware of Rojo’s
role in summoning OSHA.
Also on January 2, two representatives of Local 11 vis-
ited the Sun Valley site and talked with Montano. They
discussed getting additional qualified electricians on the
job from their union. Montano was falling behind in its
work, a fact noted by the school district inspector in an
official notice issued on January 3.5
Montano did hire two more electricians on January 3.
He hired Richard Nightingale, who identified himself as
a member of IBEW Local 11. He also hired Larry Blum,
who Montano knew had come from this union.
3 The judge erroneously stated that Rojo was hired in early Decem-
ber. This mistake has no material impact on the disposition of the
unfair labor practice issues in this case.
4 The judge erroneously stated that the trench was red-tagged on
January 3, rather than January 2. This mistake has no material impact
on the disposition of the unfair labor practice issues in this case.
5 The inspector’s project diary (R. Exh. 4) mentions this notice with
the explanation that “ELECT DID NOT HAVE ENOUGH
MANPOWER TO COMPLETE THIS JOB PRIOR TO SUN AS SCH.
THIS WORK MUST BE COMPLETED TO NOT IMPACT THE
SCHOOL.”
335 NLRB No. 52
A. MONTANO ELECTRIC 613
On the same day, Montano learned about the union af-
filiation of the other three newly hired electricians. That
morning, Rojo gave Montano his union business card,
and an IBEW Local 441 representative faxed a letter to
Montano that identified Young and Kaspar as members
of that union. Later in the afternoon, having received
these open declarations of union affiliation, Montano
asked Rojo if he, Young, and Kaspar were union mem-
bers. Rojo confirmed that they were.6
The Respondent began work at 7 a.m. on January 4
with an electrician crew of Rojo, Young, Blum, and
Nightingale. They were to continue work on under-
ground conduits other than the red-tagged main trench.
At some point during the day, a California OSHA inspec-
tor removed the red tag from a portion of the main
trench. Although Rojo testified that there was little work
to do because the red-tagged trench area involved 60
percent of the job, no other witness corroborated this
view. Furthermore, as discussed below, there was work
still to be completed at the end of the regular workday on
January 4.
Kaspar arrived at the Sun Valley site from another job
at about 9:45 a.m. There is no evidence that any electri-
cian had ceased work prior to then for the purpose of
discussing union representation, wages, or working con-
ditions. At about 10 a.m., Kaspar and Young presented
Montano union authorization cards signed by the five
electricians. Montano declined to recognize IBEW Local
11 as the employees’ representative. He directed Kaspar
and Young to return to work.
At about 11 a.m. that morning, Montano and Respon-
dent’s employees gathered for a safety meeting.
(Montano either called the meeting himself or agreed to
holding it.) The meeting lasted about 20–25 minutes.
Towards the end of this meeting, Montano received a
copy of a warning notice issued to the general contractor
by the school district site inspector. The notice stated

YOUR ELECTRICAL SUB HAS 6+ PERSONS
ON THIS JOB THEY HAVE PRODUCED LITTLE
OR NO WORK SINCE 700 AM IT IS NOW 1100
AM. YOUR SUB WILL NOT COMPLETE
WORK PER SCH. IF HIS MEN ARE VISITING
AND NOT WORKING. THE L.A.U.S.D. IS
CONCERNED THAT IF U/G WORK IS NOT
COMPLETED BEFORE MON 1-8-96 THERE WILL
BE A SEVERE SAFTY [SIC] PROBLEM WITH
STUDENTS BACK ON THIS SITE.

6 We affirm the judge’s conclusion that Montano’s inquiry did not
constitute interrogation in violation of Sec. 8(a)(1). We also affirm the
judge’s conclusion that statements made to Kaspar at another jobsite by
Respondent’s estimator Robert Florin on January 3 did not violate Sec.
8(a)(1).

When asked at the unfair labor practice hearing what
the electricians were doing between 7 and 11 a.m.,
Montano credibly testified, “It’s absolutely nothing.
They were walking back and forth. They were meeting,
they were laughing. They would actually throw the
[conduit] pipe. It was like a show really what—what
they were doing that day. But real work they didn’t.”7
At about noon, the five electricians approached
Montano as a group. They requested their unpaid back
wages and the opportunity to complete government pa-
perwork. It is undisputed that Montano had been paying
all or most of the electricians in cash, with no deductions
for taxes, and in amounts less than the prevailing wage
rate required for public jobs like the Sun Valley project.
In addition, none of the five alleged discriminatees had
apparently been asked to fill out the necessary govern-
ment tax and immigration forms for employment.
There is no evidence of any subsequent work stop-
pages on January 4 that were attributable to the electri-
cians’ workplace concerns. Kaspar testified that he and
others voiced their concerns between 10 a.m. and noon.
He acknowledged that Montano displayed no animus
towards the electricians for these meetings. According to
Kaspar, “[a]t no time during that, had [Montano] warned
me or anybody else, get back to work or you’ll be termi-
nated, or get back to work, or else. He willingly sat there
with us for two or three different meetings to work out
situations that the employees felt that they weren’t being
treated too fairly with.”8
At about 2 p.m., Montano approached Kaspar and
Young at their assigned work location in a conduit
trench. According to the credited composite testimony,
Montano asked why they were “screwing around” and
told them to get to work, shut up, and just get the project
completed. Kaspar asked if Montano would ever hire
union workers again. Montano replied that he needed
workers who worked.
The regular workday ended at about 3:30 p.m. There
was undisputedly work remaining to be done. Certain
conduit needed to be encased in concrete. Montano de-
clined the offer of one or more electricians to stay and do
the work. Instead, he and helpers Arevalo and Amaya
remained to complete the job. According to Montano, the
remaining work was what the electricians had not done
during the whole day shift. He also stated that he did not
need more than one or two people to finish the job.
On Friday, January 5, the electricians picketed the Sun
Valley jobsite prior to the start of work and during their
break time. Respondent’s work progressed without any
7 Hearing Tr. p. 236.
8 Hearing Tr. pp. 60–61.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
apparent delay. Sometime during the day, a California
OSHA official removed the red tag from the entire main
conduit trench. In addition, Montano complied with the
electricians’ request and provided them with government
tax and immigration forms to complete. The school site
inspector’s project diary shows that all electrical work
was complete and the conduits were encased by the end
of the day. Montano told the electricians to report to
work the next day in order to receive their back wages.
He promised that they would receive 2 hours of wages
for showing up on Saturday.
When the electricians arrived at the jobsite Saturday
morning, they received checks for full backpay, with
appropriate deductions. They were also informed that
they were terminated. Montano told Rojo that the elec-
tricians had to leave the job because school officials and
the general contractor did not want them there. Blum
overheard Montano say that the trenches had to be filled
by Monday’s deadline, so there was nothing for the elec-
tricians to do on Monday. Payroll records introduced by
the General Counsel show that some of the Respondent’s
employees, including one or two newly hired electri-
cians, did perform other electrical work at both the Sun
Valley and Irvine Valley College jobsites in subsequent
weeks.
It is undisputed that the Respondent’s stated reason for
terminating the five union-affiliated electricians on Janu-
ary 6 was their alleged failure to perform work on Janu-
ary 4. This was also at least one stated reason for the
Respondent’s failure to permit the same employees to
work overtime on January 4. (The other reason being the
lack of any need for more than Montano and two helpers
to finish the work remaining.) The judge found that the
failure of the five alleged discriminatees to perform work
on January 4 was due to their participation in an unpro-
tected partial work stoppage or intermittent strike. In
addition, she found that Kaspar and Young were not em-
ployees within the meaning of the Act.9 She recom-
mended dismissal of the 8(a)(3) discriminatory discharge
and denial of overtime complaint allegations on these
grounds.
We adopt the recommendation to dismiss, but we dis-
avow reliance on the judge’s rationale for doing so. The
Respondent did not raise either legal argument used by
the judge in defense of its challenged actions.10 On the
contrary, it simply claims that it took these actions be-
cause the five electricians failed to perform their work as
expected and required for a full day at a time when a

9 The judge based this finding on the rationale of another administra-
tive law judge in Aztech Electric Co., 335 NLRB 260 (2001).
10 We also note that the Board has reversed the judge’s decision in
relevant part in Aztech Electric Co., supra.
pending completion deadline made any delay particularly
critical. On the other hand, the General Counsel con-
tends that the electricians performed what work they
could on January 4 and that the Respondent’s stated rea-
son of nonperformance is merely a pretext for retaliation
against their recent disclosure of union affiliation and
support.
Under the Wright Line11 test for alleged 8(a)(3) and (1)
discriminatory employment actions, the General Counsel
bears an initial burden of introducing evidence sufficient
to support the inference that protected concerted activity
was a motivating factor in the employer’s decision to act.
In the instant case, it is undisputed that the Respondent
knew about the alleged discriminatees’ union activities
and that it denied them overtime and then terminated
them soon after becoming aware of these activities.
There is, however, little credible evidence of the Re-
spondent’s animus towards union activity. The judge has
dismissed, primarily on credibility grounds, all complaint
allegations of coercive interrogations and threats.12
Montano hired known union members Nightingale and
Blum on January 3. Furthermore, General Counsel’s
witness Kaspar admitted that Montano “willingly” par-
ticipated in meetings about the electricians’ complaints
on January 4. On January 5, Montano at least partially
satisfied those complaints by providing the necessary
government employment forms for the electricians to
complete.
Under the foregoing circumstances, it might be said
that the General Counsel has failed to meet his initial
burden under Wright Line. Even assuming, arguendo,
that an inference of antiunion motivation may be drawn,
as the General Counsel suggests in exceptions, solely
from the timing of the termination actions in relation to
the sudden news that all electricians were union members
who sought union representation for the Respondent’s
historically nonunion work force, we find that the Re-
spondent has met its rebuttal burden of showing that it
would have discharged these five employees, and denied
them overtime 2 days earlier, even in the absence of their
union activities.
We agree with the General Counsel’s argument in ex-
ceptions that the record shows that the electricians spent
relatively little time during January 4 engaged in work
stoppages to discuss matters of union representation or
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). See also Manno Electric,
321 NLRB 280 fn. 12 (1995).
12 Our dissenting colleague would apparently reverse the judge’s
credibility findings with respect to alleged statements made to Rojo on
January 2. As previously stated, we find no basis for reversing the
judge under Standard Dry Wall.
A. MONTANO ELECTRIC 615
working conditions. Our agreement in this respect favors
the Respondent’s case, however, not the General Coun-
sel’s, because credited or undisputed evidence shows that
the electricians were not performing the work expected
of them at times when they were not engaged in pro-
tected concerted activity.
As detailed above, there is no evidence of any work
stoppages attributable to such activity prior to the presen-
tation of union cards to Montano by Kaspar and Young
at about 10 a.m. Yet slightly more than an hour later, the
school district inspector warned that the Respondent had
produced “little or no” work since the 7 a.m. beginning
of the workday. Similarly, there is no evidence of any
work stoppages attributable to protected concerted activ-
ity after the five electricians met with Montano at noon
about back wages and government forms. Yet the cred-
ited testimony shows that in midafternoon Montano
scolded Kaspar and Young and told them to get to work.
Furthermore, it is undisputed that work remained to be
done at the end of the day which, according to
Montano’s credible testimony, should already have been
done by the electricians during the regular workday.
What they were doing, as credibly described (albeit with
some likely hyperbole) by Montano, was “walking back
and forth. They were meeting, they were laughing.
They would actually throw the pipe. It was like a show
really—what they were doing that day. But real work
they didn’t.”
We find that the Respondent has shown that it bore
enmity against the electricians for failing to perform their
work as expected on January 4.13 This failure, which
cannot be attributed to time spent engaged in protected
concerted activities, drew criticism from school officials
and the general contractor, impaired the Respondent’s
ability to meet an intractable job completion deadline,

13 Contrary to the dissent, there is evidence that Blum and Nightin-
gale failed to perform work as expected on January 4. Montano identi-
fied them as the only electricians even attempting to work, but his
testimony did not exculpate them altogether from complicity in the
electrician crew’s misconduct. In fact, as two of the four electricians
working on site prior to Kaspar’s arrival, Blum and Nightingale must
have had some role in what the site inspector described as the produc-
tion of “little or no work” during the first half of that workday. We
therefore disagree with the dissent that their termination by the Re-
spondent can only be explained by their union membership.
We note further that the record does not support the dissent’s claim
that the termination of all electricians on Saturday, January 6 increased
the likelihood that Montano would not meet his job completion dead-
line. The site inspector’s job diary shows that no further electricians’
work was scheduled after January 5. The timing of the discharge action
therefore seems consistent with the Respondent’s asserted justification
for discharge. Having completed all underground conduit work by the
deadline in spite of the electricians’ misconduct on January 4, Montano
decided that he would forego the risk of jeopardizing other jobs by
retaining this crew in his employ.
and likely jeopardized the Respondent’s business reputa-
tion. We therefore find that the Respondent would have
denied overtime work to the electricians and would have
terminated them for their nonperformance even in the
absence of protected concerted activities. Accordingly,
we adopt the judge’s recommendation to dismiss the
complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER LIEBMAN, dissenting in part.
My colleagues agree with the judge that the Respon-
dent (Montano) did not violate the Act in connection
with the interrogation, allegedly accompanied by threats,
of certain employees and the discharge of five employ-
ees.
In contrast to my colleagues and the judge, I would
find that Montano violated Section 8(a)(1) by virtue of
the statements made by Robert Florin, Montano’s estima-
tor, to employee Michael Kaspar, on January 3. I would
also find that Montano’s discharge of the five employees
violated Section 8(a)(3) because it was based not on their
failure to perform work on January 4, but on their union
affiliation and activities.
The Interrogation of Kaspar
The facts related to Kaspar’s interrogation are de-
scribed in the judge’s decision: On January 3, the Union
faxed a letter to the Respondent, stating that Kaspar was
a member. In response to a question from Kaspar that
day, Florin acknowledged receiving the letter. He also
“asked Kaspar if he intended to bring any troubles to the
job.” When Kaspar said no, Florin stated, “If you’re
smart and do things right, this Irvine Valley project could
be too much for you and we could be looking at five
years worth of work.” Florin complimented Kaspar’s
work and skills. The conversation then was interrupted
by a phone call for Florin. When he returned, Florin told
Kaspar that Montano “wanted to know if Kaspar in-
tended to cause labor problems.” On being reassured by
Kaspar, Florin said, “[G]ood, because this thing could
turn into five years.”
Citing Florin’s compliments, the judge rejected the
conclusion that the “import of Florin’s words to Kaspar
evidenced an intent to be more cooperative regarding
future employment if Kaspar abandoned his interest in
the Union.” It seems to me, however, that Florin’s re-
marks were clearly coercive. In a single conversation in
which he claimed to be speaking for Kaspar’s employer,
Florin twice inquired about Kaspar’s future union activ-
ity and twice linked that activity to Kaspar’s employment
prospects. In the context of talk about “troubles” on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
job and “labor problems,” an employee reasonably could
understand a reference to being “smart” and “do[ing]
things right” to mean foregoing union activity. Florin’s
intent, of course, is immaterial.1 Whether Florin’s state-
ments are regarded as a promise, a threat or a mixture of
both, they were unlawful. See, e.g., Pepsi-Cola Bottlers
of Atlanta, 267 NLRB 1100, 1103 (1983) (supervisor’s
statement that employee had “a bright future with this
Company if you choose to make the right decisions” was
unlawful threat of reprisal).2
The Discharges
My colleagues correctly reject the judge’s rationale for
upholding Montano’s discharge of five employees. They
conclude that Montano was motivated by lawful “enmity
against the electricians for failing to perform their work
as expected on January 4.” This was what Montano was
required to prove, under the Wright Line test,3 but I do
not believe he succeeded.
My colleagues express some doubt about whether the
General Counsel met his own initial burden of proving
that antiunion animus was a motivating factor in the dis-
charges. To me, the evidence of antiunion animus was
clear. The timing of the discharges certainly permits an
inference of antiunion motivation. The discharged em-
ployees undertook a flurry of protected activity in the
days leading up to their discharge, presenting Montano
with legitimate complaints about their wages and work-
ing conditions—as well as signed union authorization
cards. Although she condemned the “manner and timing
of the presentation of issues” to Montano, the judge
found that “each of the [salts’] actions, individually,
raised legitimate work-related concerns.” The record
shows that until the salts raised concerns, Montano was
failing to withhold taxes from employees’ paychecks,
was failing to comply with prevailing wage obligations
on a public construction project and with immigration
law requirements, and was violating occupational safety
and health standards. It is no wonder that he opposed the
Union’s efforts.4

1 E.g., Douglas Foods Corp., 330 NLRB 821 (2000), enfd. in rele-
vant part 251 F.3d 1056 (D.C. Cir. 2001) (“[A]n employer statement
violates Section 8(a)(1) if it would have a reasonable tendency to inter-
fere with, restrain or coerce employees in the exercise of their Section 7
rights, without regard to the [employer’s] intent.”).
2 Although the judge did not expressly make a finding that Florin
was Montano’s agent or supervisor, it is clear from the record that he
was, at the very least, an agent for purposes of his statements to Kaspar.
3 251 NLRB 1083 (1980) enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 292 (1983).
4 Notably, this case involves the salting campaign of the union,
IBEW Local 441, involved in Aztech Electric Co., 335 NLRB 260
(2001). In my concurring opinion in Aztech, I argued that a salting
campaign that involves the aggressive pursuit of legal remedies for
But there is a good deal more to suggest Montano’s
overriding motive for the discharges. Apart from Florin’s
unlawful statements to Kaspar, Montano himself made
statements demonstrating animus: (1) on January 2, he
told Gilbert Rojo that he would fire employees Kaspar
and Fred Young if they were union members;5 (2) on
January 3, he told Rojo, “I just don’t want unions,” and
said that he would not recognize or negotiate with the
Union; and (3) on January 3, he told prospective em-
ployee Dean Todd, who identified himself as a salt, that
he did not want to be a union contractor and refused to
give Todd an application. Whether or not these state-
ments independently violated Section 8(a)(1), they do
show Montano’s hostility to the Union.
Given the clear evidence of Montano’s antiunion mo-
tivation, the question becomes whether he would have
nevertheless discharged the five employees solely for
failing to perform work. To show this, Montano was
required to prove not only that the five employees did,
indeed, fail to perform work and that their failure was not
attributable to engaging in protected activity, but also
that he would have discharged them as a result.
Montano’s proof fell short.
With respect to two of the discharged employees,
Richard Nightingale and Larry Blum, the record does not
specifically show that they ever failed or refused to per-
form work. Montano’s testimony about the work of
Nightingale and Blum was uniformly positive. They
were, however, union members, and it seems clear that
they were included in the discharge for that reason alone.
As for the other three employees, even crediting
Montano’s testimony concerning their failure to work
during periods when they do not appear to have been
engaged in protected activity, I cannot conclude that un-
der the circumstances, Montano would have fired them
in the absence of their union affiliation. Of course, it is
not enough for Montano to show that he could have fired
the employees. See, e.g., Structural Composites Indus-
tries, 304 NLRB 729 (1991).
The judge did not find that Montano had no future
work for the discharged employees. Montano continued
to employ other workers on the project involved in this
case, after an apparent January 8 deadline for comple-
tion. If Montano was concerned about meeting the dead-
line, then the discharges seem counterproductive.

employer misconduct is protected activity, even if it means that em-
ployers who break the law are driven out of business. This case helps
explain what may inspire such campaigns.
5 The judge both credited and discredited Montano’s denial that he
made this statement, at different points in her decision. In any case,
Montano’s testimony did not amount to a specific denial of the state-
ment Rojo attributed to him.
A. MONTANO ELECTRIC 617
Montano regarded at least some of the discharged em-
ployees (Nightingale and Blum) as good workers. If, on
the other hand, the work was done and thus there was no
pressure to meet the deadline, then the discharged em-
ployees’ asserted failure to perform work would not
seem to furnish pressing cause for their termination. In
any case, Montano never warned the workers, imposed
lesser discipline, or gave them an ultimatum. Instead, he
fired them. Surely their union affiliation, and not their
failure to perform work, is the real explanation for this
decision, in light of Montano’s antiunion animus.

John Kloosterman, Esq., and Jean Libby, Esq., for the General
Counsel.
Astrid Arevalo, Javier Arevalo, and Jose Montano, for the Re-
spondent.
David Lawhorn, for IBEW Local 441.
Gilbert Rojo, for IBEW Local 11.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case was tried in Los Angeles, California, on June 25, 26,
and 27, 1997. The consolidated complaint, issued January 3,
1997, alleges that Jose A. Montano d/b/a A. Montano Electric
(Respondent) violated Section 8(a)(1) and (3) of the Act by
reducing work assignments, by interrogating and threatening
employees, and by discharging five employees because they
were members of and supported International Brotherhood of
Electrical Workers, Local 441, AFL–CIO (Local 441) and In-
ternational Brotherhood of Electrical Workers, Local 11, AFL–
CIO (Local 11 or collectively, the Union).1 The relevant events
occurred in December 1995 and January 19962 at the J. H.
Frances Polytechnic High School jobsite in Sun Valley, Cali-
fornia.
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions.3 On
the entire record, including my observation of the demeanor of

1 The charge in Case 21–CA–31126 was filed by Local 441 on Janu-
ary 23, 1996, and amended on December 11, 1996. The charge in Case
21–CA–31128 was filed January 25, 1996, by Local 11 and amended
December 10, 1996.
2 Unless otherwise specified, all dates are in 1996.
3 Jose A. Montano, the sole proprietor of Respondent, appeared
without counsel. Based upon my observation of Montano throughout
the hearing, I have concluded that he understands English fairly well.
Nevertheless, prior to the hearing, I instructed counsel for the General
Counsel to offer to provide a translator for Montano throughout the
hearing. Montano refused the offer. In addition, although advised that
he had a right to counsel, Montano stated that he did not want an attor-
ney because he could not afford to pay for one. Montano was repre-
sented by his daughter and son. Although witnesses were sequestered, I
allowed Montano as well as his daughter and son to remain in the hear-
ing room throughout the hearing. In some instances, the transcript
indicates partial comments by Montano or his daughter or son. These
partial comments were followed by family caucuses which were not
audible on the record.
the witnesses, and after considering the oral argument by coun-
sel for the General Counsel and for Respondent, I make the
following
FINDINGS OF FACT4
I. JURISDICTION AND LABOR ORGANIZATION STATUS
During the 12-month period ending March 1, 1996, Respon-
dent, a sole proprietorship, provided services valued in excess
of $50,000 for other enterprises located within the State of Cali-
fornia, each of which other enterprises, during the same period,
performed services valued in excess of $50,000 in States other
than the State of California, or sold and shipped from its Cali-
fornia locations goods valued in excess of $50,000 directly to
points outside the State of California. Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that Local
441 and Local 11 are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a small, nonunion electrical contractor based
in Anaheim, California. Respondent utilizes Bob Florin as its
estimator. Jose A. Montano, his son Javier Arevalo, and a
helper, Nelson Amaya, form the steady worker complement.
Other employees are hired as needed.
Alleged discriminatees Mike Kaspar, Fred Young, and Gil-
bert Rojo applied for work with Respondent and were hired in
early December 1995. Kaspar’s resume did not mention any
union affiliation. Rojo and Young, who were hired after tele-
phone interviews with Montano, did not reveal their union af-
filiation to Montano at the time they were hired. Kaspar,
Young, and Rojo worked on various jobsites during December
1995. There is no dispute that Respondent was satisfied with
the quality of their electrical work.
Young and Rojo were assigned to work at the J. H. Frances
Polytechnic High School in Sun Valley on January 2.5 On
January 3, Respondent hired alleged discriminatees Richard
Nightingale and Larry Blum. Montano knew Nightingale was a
member of the Union at the time of hiring him because Night-
ingale introduced himself as a member of IBEW Local 11 look-
ing for work.
On Thursday, January 4, Kaspar also reported to work at the
Sun Valley jobsite. At about 10 a.m. that day, Montano was
presented with authorization cards signed by the five alleged
4 Credibility resolutions have been made based upon a review of the
entire record and the exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
5 Young was actually assigned to the job in mid-December 1995 in
order to look over the blueprints of the job, assemble a materials list,
and plan the progress of work. Montano was dissatisfied with Young’s
performance of these tasks but did not discuss the matter with Young.
Because Respondent does not rely on Young’s December 1995 per-
formance as a reason for Young’s discharge, it is unnecessary to elabo-
rate further regarding this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
discriminatees. Montano refused to recognize the Union and
told the employees to get back to work. It is undisputed that
very little work was performed on January 4. On that day, vari-
ous concerns regarding safety, insurance, wages, hours, and
terms and conditions of employment were brought to
Montano’s attention by the five alleged discriminatees. These
concerns included several requests for back wages, contacting
the Wage & Hour Division of the Department of Labor, a re-
quest to complete Federal paper work including I-9 and W-4
forms, trench safety, a request for safety meetings, and a re-
quest for health insurance. A call to OSHA the previous day
had resulted in the main trench being “red tagged.”6
On Friday, January 5, the five alleged discriminatees pick-
eted before work and at lunchbreak. The signs said that Re-
spondent did not provide health insurance and did not pay
taxes. On Saturday, January 6, Respondent paid the five alleged
discriminatees all back wages owed to them and announced that
there was no further work for them. Pursuant to a petition for
representation filed by the Union, a consent election was
scheduled for March 22. The petition was withdrawn prior to
the election.
B. Alleged Interrogations and Threats
Montano
Montano allegedly interrogated employees on two occasions
and threatened employees with refusal to hire union members
in the future.7 Interrogation is not, by itself, a per se violation of
Section 8(a)(1). An interrogation is coercive if, under all the
circumstances, it reasonably tends to interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights. Em-
ery Worldwide, 309 NLRB 185, 187 (1993). Under this totality
of circumstances approach, such factors as whether the interro-
gated employee is an open or active union supporter, the back-
ground of the interrogation, the nature of the information
sought, the identity of the questioner, and the place and method
of the interrogation are examined. Sunnyvale Medical Clinic,
277 NLRB 1217 (1985).
The first allegation of interrogation was related by Dean
Todd, a member of Local 11, and corroborated by Rojo. Todd
testified that he spoke with Montano on January 3. Todd intro-
duced himself to Montano as an electrician in search of em-
ployment and gave Montano his resume. In addition to listing
Todd’s qualifications as an electrician, the resume indicated
that Todd’s “objective” was to promote the advancement of
employees in the electrical industry by organizing them for
IBEW. His experience included 2-1/2 years as business repre-

6 Kaspar explained that an OSHA red tag indicates that the location
so marked is dangerous and cannot be worked in until the condition is
corrected. According to Rojo, he caused a call to OSHA to be made
because he noticed, “some very hazardous working situations. . . . And
there was no material on the job. There was an extreme lack of tools
and there was just no way you could proceed doing anything. There
was no ladders for getting—no egress in and out of the trenches; just a
horrendous type of situation.”
7 Further 8(a)(1) allegations—that Respondent announced shut down
of the Sun Valley job and layoff of employees because of the employ-
ees’ union membership—will be discussed infra with the 8(a)(3) allega-
tions.
sentative for Local 11 and he listed training in IBEW labor
management cooperation, organizing, and representation. His
references were business representatives of Local 11. Accord-
ing to Todd, Montano noticed union insignia on Todd’s pocket
protector before looking at the resume and asked if Todd was a
member of the Union. Todd responded that he was. After
studying the resume, Montano asked Todd if Todd’s objective
was to organize his shop. Todd stated that it was not. Montano
replied that he was not a union contractor and did not want to
be a union contractor. There is no allegation that Respondent
refused to hire Todd because of his union activity. Montano
denied this interrogation stating, “Why did I have to ask this
type of question when I didn’t have any knowledge at the time
of anything that had to do with the Union.” Montano indicated,
in addition, that he did not specifically recall Todd.
I find that Montano asked Todd if he was a union member
before reading the resume proffered by Todd.8 However, I con-
clude that under the circumstances no violation occurred. Todd
wore union insignia to the interview. Accordingly, as conceded
by counsel for General Counsel, Todd was an open union ad-
herent at the time he applied for the job. Although Montano, the
hiring official of Respondent, asked the question of Todd dur-
ing a job interview, I find under the circumstances the interro-
gation did not reasonably interfere with Todd or other employ-
ees’ exercise of their rights under the Act. See, e.g., Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). Regarding Montano’s further question as to whether
Todd’s objective was to organize Respondent, I similarly find
no coercive impact. According to Todd’s testimony, Montano
had by this time read Todd’s resume and knew that Todd was
an open and active union supporter whose objective was to
organize for the Union.
The second allegation of interrogation involves Peter Smith.
Smith testified that he dropped his resume through Respon-
dent’s mail slot in early December 1995. Montano contacted
Smith by phone shortly thereafter and told Smith he did not
have any work at the time. According to Smith, Montano spoke
with him by telephone at about 11 a.m. on January 4 and began
the conversation by asking if Smith was with the Union. Smith
replied that he was not and asked why Montano wanted to
know. Montano replied that he was having problems with the
Union and he wanted to replace some employees who were
trying to organize his shop. Montano offered Smith a job but
Smith did not accept.9
8 Todd’s testimony was somewhat contrived. However, based upon
Montano’s inability to recall Todd and his equivocal denial of the ques-
tioning, I find that Montano may, indeed, have questioned Todd.
9 Counsel for the General Counsel also relied on testimony of Rojo
regarding a telephone conversation between Rojo and Montano on the
evening of January 2. According to Rojo, Montano quested him about
his union activities as well as those of Young and Kaspar. I credit
Montano’s denial that he interrogated anyone prior to learning of union
activity. There is no evidence that Montano was aware of any union
activity at this time. This is consistent with the testimony of Young
who related that two representatives from Local 11 met with Montano
to discuss getting more qualified electricians on the Sun Valley job on
January 2. At a “later” time, Young testified that Montano asked Young
A. MONTANO ELECTRIC 619
Montano stated, “I can’t think that it’s possible that I might
have asked them [referring to Todd and Smith]. . . . Could be
possible that I might have asked that. But, not necessarily, so.”
Montano did not deny speaking with Smith. Nevertheless, I
find that Smith’s testimony simply strains credulity. According
to Rojo, on Friday, January 5, six individuals applied for work
with Montano and Montano told them he was not hiring.10
Accordingly, there would have been no reason to call Smith the
prior day. Moreover, Montano’s demeanor and manner of
speech when speaking in English were simply not as sophisti-
cated as Smith described. Accordingly, I am unable to credit
Smith’s testimony.11
Although counsel for the General Counsel contended
throughout the hearing that the testimony of Smith supported
that above allegation of interrogation, during closing argument
he also argued that testimony of Rojo supported this allegation.
Specifically, Rojo testified that he gave Montano his business
card in the morning of January 3 and told Montano that he and
Young were union members. Later in the afternoon, according
to Rojo, Montano asked him if he, Young and Kaspar were
union members. Rojo responded that they were. Rojo had just
handed Montano a business card identifying himself as a busi-
ness representative for Local 11. David Lawhorn, business
representative for Local 411, sent a fax to Montano at 9:37 a.m.
on the same date identifying Young and Kaspar as union em-
ployees.12 Under these circumstances, I find that the interroga-
tion did not reasonably interfere with Rojo’s or other employ-
ees’ exercise of their rights under the Act pursuant to the ana-
lytical framework of Rossmore House, supra.
The third allegation regarding Montano is that he told em-
ployees he would not hire union employees in the future. At
noon on January 4, the five alleged discriminatees quit working
and approached Montano as a group. They requested back
wages and asked that government paperwork be completed.
Montano stated that their back wages would be paid on the
following day. At their request, the employees complete I-9 and
W-4 forms. As stated earlier, very little electrical work was
performed this day and Montano was being pressured by school
officials to complete the work before students came back from
the holiday break on Monday, January 8.
At 2 p.m. on January 4, Montano spoke with Kaspar and
Young. He asked them why they were “screwing around” and
told them to get to work, shut up, and just get the project com-

how he knew the two men and Young replied that he knew them
through the Union. Montano asked if Young was Union and Young
replied affirmatively stating, “It didn’t seem to bother him [Montano] at
that point. At that point, we hadn’t picketed or done any real concerted
activities.” Montano’s question of Young is not alleged to violate the
Act.
10 There is no allegation that failure to hire these individuals was vio-
lative of the Act.
11 Similarly, I do not credit Smith’s testimony that Montano told him
that he wanted to replace some employees who were trying to organize
his shop.
12 Respondent denied receipt of this fax. However, based upon the
fax transmission verification record, it appears the fax was transmitted
at 9:37 a.m. on January 3.
pleted.13 Kaspar asked Montano if he would ever hire union
members again in the future. Montano replied that he would
not. According to Montano, he stated that he needed workers
who worked. I credit Montano. Accordingly, I find no viola-
tion.
Florin
Florin is alleged to have told Kaspar that Respondent would
be more cooperative regarding future employment if employees
abandoned their interest in the Union. He is also alleged to have
threatened Kaspar with legal action for engaging in union activ-
ity. Respondent denies these allegations and denies that Florin
is its agent or supervisor. Florin did not testify.
As mentioned above, on January 3, Lawhorn faxed a letter to
Respondent stating that Kaspar and Young were members of
the Union. Later that day, Kaspar said to Florin, “[W]ell you
probably know that I’m in the union by now.” Florin responded
affirmatively. At the end of the day, Kaspar asked Florin if he
had received the fax from the Union. Florin stated that he had
and asked Kaspar if he intended to bring any troubles to the job.
Kaspar said no. Florin then told Kaspar, “If you’re smart and do
things right, this Irvine Valley project could be too much for
you and we could be looking at five years worth of work.” Flo-
rin also complimented Kaspar on his fine work and said that his
union training probably meant Kaspar was a good worker. Flo-
rin was interrupted by a phone call which ended by Florin say-
ing, “I’ll ask him when I get off the phone.” Florin returned and
said Montano wanted to know if Kaspar intended to cause labor
problems. Kaspar reassured Florin who responded, “[G]ood,
because this thing could turn into five years.” This exhausted
Kaspar’s recollection of the conversation. In response to two
leading questions regarding whether any adverse consequences
or legal action was mentioned because of his union member-
ship, Kaspar recalled that Florin told him that Montano could
sue him for not saying he was in the Union when he was
hired.14
I am unable to conclude that the import of Florin’s words to
Kaspar evidenced an intent to be more cooperative regarding
future employment if Kaspar abandoned his interest in the Un-
ion. Rather, I find that Kaspar’s testimony regarding Florin’s
remarks must be construed in the context of Florin’s view that
Kaspar was a good worker and that his union training had been
beneficial. After all, the fact that Kaspar had identified himself
13 Kaspar testified that Montano also stated, “Why are you guys do-
ing this to me? I hate the union; I hate the labor problems; why are you
screwing me around like this; I don’t want this to happen; I want you
guys to work; shut up; and just get this project done.” Young’s em-
belishments did not corrborate Kaspar’s version of this part of the con-
versation. I do not credit either of them regarding these statements.
14 Kaspar also responded to a leading question, “He told me that if I
just did good work and keep my mouth shut about the union, I would
be employed for a long time.” I find that this was Kaspar’s summary of
the conversation which he had already fully detailed in his prior testi-
mony and I do not credit his conclusory rendition. According to Kas-
par, Montano and his son Javier Arevalo arrived on January 3 and
spoke with Kaspar and Florin. Kaspar testified that Montano told him,
“I don’t want any union troubles in my company,” and “I hate the un-
ion; I don’t want to be in the union.” Montano denied making such
statements. I credit his denial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
as a union member did not deter Florin from wanting Kaspar to
remain employed. Accordingly, I construe Florin’s remarks, as
related by Kaspar, to mean that if Kaspar was smart about his
work and performed his work correctly, there would be more
work. As to Florin’s alleged further remark—that Montano
could sue Kaspar for not reporting that he was in the Union
when he was hired—I do not credit Kaspar’s testimony due to
his faulty memory.
C. Alleged Reduction in Work Assignments and Discharges
Facts
Montano received a note from the project supervisor indicat-
ing that little or no work was completed from 7 to 11 a.m. on
January 4 and asking what the electricians were doing during
that time. Montano observed the five alleged discriminatees
requesting meetings or walking around laughing and throwing
pipe. Very little work was performed. As mentioned in the
background section, this was the day that Montano received the
authorization cards from the five alleged discriminatees.15
Young spoke to the project supervisor who told Young that he
had no trouble with organizing but he did have a problem with
stopping an entire account. The supervisor continued that there
was a deadline of January 8 for completion of the project be-
cause winter vacation would be over on that date and students
would be returning to school.
Montano stated,

I still don’t understand what was being done. But it’s
true that Gilbert Rojo was working, but at the same time,
and in additionally to it, he would be talking to these two
men. And, all of a sudden, also he would stop the other
two men and then—then all of his six people were to-
gether. This produced some consternation to all of the
school. Oh, I’m referring to the principal, the head of the
school, because they were watching what this was—while
this was taking place. And, themselves they didn’t under-
stand what was going on.

When Montano was asked what the alleged discriminatees
did that day, he stated, “It’s absolute nothing. They were walk-
ing back and forth. They were meeting, they were laughing.
They would actually throw the pipe. It was like a show really—
what they were doing that day. But real work they didn’t.”
At quitting time on Thursday, January 4, Montano, Arevalo,
and Amaya stayed to complete conduit installation which was
to be encased in concrete that evening. Kaspar asked if the five
alleged discriminatees could stay and do the work.16 Montano

15 Kaspar testified that he handed the authorization cards to Montano
on January 4 while Rojo testified that he delivered the cards to
Montano on January 5. Kaspar further testified that Montano acknowl-
edged that each of the signatures was an employee of his and then said,
“I don’t want to be union, I hate the union, I don’t care what you sign. I
don’t want to be in the union.” I do not credit this testimony or similar
testimony regarding a conversation with Kaspar and Rojo on January 5.
16 Kaspar testified in response to the question, “Was there work to be
done that day?”: “Well, at the time, there was at least one concrete
truck waiting outside to come and pour concrete in some of the ditches
that we had been working in. . . .” It is unclear to me what electrician
work was encompassed in pouring concrete.
told them that he did not need their help to complete the work.
In his view, the five alleged discriminatees should have com-
pleted the work before quitting time and, in any event, the work
remaining at quitting time could be completed by one or two
workers.17
On Friday, January 5, Montano told Kaspar and Nightingale
that the project was being shut down.18 Montano told the five
alleged discriminatees to report on Saturday, January 6, to re-
ceive their back wages. The alleged discriminatees demanded 2
hours showup time for coming in on Saturday. Montano agreed
to this.
On Saturday, January 6, Rojo and Montano spoke at about 8
a.m. while sitting in Montano’s vehicle. None of the other al-
leged discriminatees was present. Montano told Rojo that the
five alleged discriminatees had to leave the job because they
did not do the work and the school officials and the general
contractor did not want them there because they were a bad
example to the students. Blum also heard Montano say that the
trenches the electricians had been working in had to be filled up
because school was starting on Monday and there was nothing
the electricians could do on Monday.19
Analysis
Union organizers who work for nonunion companies pursu-
ant to a “salting” policy are generally qualified as employees
within the meaning of Section 2(3) of the Act. Town & Coun-
try Electric, 309 NLRB 1250, 1258 (1992), enf. denied 34 F.3d
625 (8th Cir. 1994), enfd. 516 U.S. 85 (1995). The alleged dis-
criminatees Kaspar, Rojo, Young, Nightingale, and Blum were
union “salts” and entitled to engage in acceptable salting activi-
ties. In the absence of objective evidence to the contrary, no
inference of disabling conflict of interest nor a presumption
that, if hired, a union salt will engage in activities inimical to
the employer’s operation, is appropriate. Town & Country Elec-
17 I do not credit Rojo’s testimony that Montano said, “You all have
to go. All the union fellows gotta get off the job.”
18 I do not credit Nightingale’s testimony that Montano told him on
January 5 that this would be his last working day because Montano
would not run a union shop. Nightingale was asked leading questions to
elicit this response and I find his memory faulty with regard to the
conversation. However, I do credit Blum’s testimony that Montano
stated he was worried on January 5 that he was going to lose the project
because of the Union’s actions the prior day.
19 Rojo testified that Montano told him that the job was taken away
from him because of the Union. Nightingale, Kaspar, and Young testi-
fied that they spoke directly to Montano who told them there was no
more work on the project because of union problems and there was no
further work for any of the five alleged discriminatees on any other
projects. I find it more likely that they were told this by Rojo who was
the only one who spoke with Montano directly. I do not credit Rojo’s
version of the conversation with Montano including his assertion that
he would never hire union members again. In making this determina-
tion, I rely primarily on the fact that Young and Kaspar were both told
by the project superintendent that there was a deadline of January 8. In
addition, I credit Montano as corroborated by Blum in attributing lack
of work on the following Monday, January 8, to the project being on
deadline. Accordingly, the allegations that Montano violated Sec.
8(a)(1) by announcing the shutdown of the job because of employees’
union activities and announcing layoff of employees due to their union
membership are dismissed.
A. MONTANO ELECTRIC 621
tric, supra, 309 NLRB at 1257; Sunland Construction Co., 309
NLRB 1224, 1230 (1992).
In Aztech Electric Co., 335 NLRB 260 (2001), Administrative
Law Judge Gerald A. Wacknov analyzed objective evidence of
the salting activities of Local 441. After a thorough description of
the program, Judge Wacknov stated, stated at 312,

It seems clear that the Union’s “organizing” efforts
have proved to be highly unsuccessful and that despite
numerous and persistent attempts to “organize” over a pe-
riod of some five years there have admittedly been a rela-
tively few instances of positive results. Thus, according to
the equivocal testimony of Business Representative Law-
horn, since 1992 there have been about 10 contractors that
have signed contracts with the union as a result of the Un-
ion’s organizational activities; however, Lawhorn also tes-
tified that he “doesn’t have any idea why these contractors
on salted projects sign with Local 441.” It is puzzling,
therefore, that, Lawhorn believes that the salting program
has been successful.

From the foregoing, namely, the relatively insignificant
number of new signatory contractors, juxtaposed with the Un-
ion’s puzzling emphasis on the success of its salting program, it
may be concluded that the Union measures its success not in
the traditional sense of “organizing,” but in the number of non-
union contractors it eliminates as competitors in its “battle for
survival. . . .”
Judge Wacknov concluded that a “disabling conflict” existed
in that the motive and purpose of Local 441’s salts was to en-
gage in activities inimical to the employer’s operations. Thus,
he concluded that the salts were not employees within the
meaning of Section 2(3) of the Act. (Id. at 313.) I take judicial
notice of Judge Wacknov’s decision.20 One of the “salts”
therein, Mike Kaspar, as well as Business Representative Law-
horn were involved in both Aztech and this case. Moreover, I
conclude, in agreement with Judge Wacknov, that an important
goal of the salting program of Local 441, is, “to create confron-
tations with [nonunion] contractors for the purpose of generat-
ing unfair labor practice charges, whether ultimately meritori-
ous or not, in furtherance of an objective to impact the contrac-
tors’ financial viability. . . .” and that this purpose constitutes a
disabling conflict as envisioned in Town & Country. Accord-
ing, I find that the Local 441 discriminatees Kaspar and Young
were not employees within the meaning of the Act. The three
other alleged discriminatees, Rojo, Nightingale, and Blum,
were members of Local 11. There is no evidence that they
adopted the salting objectives of Local 441.

20 See.g., Pottsville Bleaching Co., 303 NLRB 186, 191 fn. 11
(1991); Southern Maryland Hospital, 288 NLRB 481 fn. 2 (1988).
Nevertheless, I find no violation of the Act with regard to
Rojo, Nightingale, and Blum. Although unrepresented employ-
ees, such as these three alleged discriminatees, are entitled to
act in concert to protest terms and conditions of employment,21
not all concerted activities are protected. Various factors, ana-
lyzed on a case by case basis, determine the contours of the
Act’s protection.22 In this case, the five alleged discriminatees
performed no work during the morning of January 4 and little
work during the remainder of the day. Their actions were timed
intermittently and I infer that this timing was the product of
careful orchestration.23 The manner and timing of the presenta-
tion of issues to Respondent were certainly intended to harass
and confuse Respondent. Although each of the actions, indi-
vidually, raised legitimate work-related concerns, the alleged
discriminatees did not choose to strike. Rather, their actions
amounted to a partial work stoppage or intermittent strike. Such
job actions are unprotected.24 Accordingly, I find no violation
in failure to assign overtime work to them on the evening of
January 4 nor in failing to use their services for further projects.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 11 and Local 441 are labor organizations within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act as alleged in the
consolidated complaint as amended at hearing.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended25
ORDER
The complaint is dismissed.

21 NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).
22 See, e.g., Interlink Cable Systems, 285 NLRB 304, 306 (1987),
and cases cited therein.
23 This inference is well founded. The five employees possessed con-
siderable expertise in labor law matters. One was a business agent.
Another, Michael Kaspar, had “salted” on over 100 occasions. See,
e.g., Aztech Electric Co.,at 288–290. These two employees had worked
for the Respondent for over a month. None of their concerns were
raised until the morning of January 4.
24 See, e.g., United States Service Industries, 315 NLRB 285 (1994).
25 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.