Advanced Masonry Associates, LLC d/b/a Advanced Masonry Systems

National Labor Relations Board - Board Decisions

Apr 13, 2018

366 NLRB No. 57 (N.L.R.B. 2018)

366 NLRB No. 57
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Advanced Masonry Associates, LLC d/b/a Advanced
Masonry Systems and Bricklayers and Allied
Craftsworkers, Local 8 Southeast. Cases 12–
CA–176715 and 12–RC–175179
April 13, 2018
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On May 10, 2017, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Union filed answering briefs, and the
Respondent filed reply briefs. The General Counsel filed
exceptions and a supporting brief, and the Respondent
filed an answering 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 the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3

1 No exceptions were filed to the judge’s dismissal of the Union’s
objection regarding the Respondent’s solicitation policy or to the
judge’s sustaining of the Respondent’s challenges to the ballots of
Robert Harvey, Robert Baker, Mark France, and Robert Pietsch.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We affirm the judge’s conclusion that the Respondent did not vio-
late Sec. 8(a)(1) of the Act or engage in objectionable conduct by inter-
rogating employee Luis Acevedo. Under the circumstances of this
case, a reasonable employee would not have interpreted Foreman Mario
Morales’s question regarding insurance papers as inquiring about
Acevedo’s union allegiance. Member Pearce does not rely on the
judge’s statements that “from Acevedo’s perspective” Foreman Mario
Morales was asking about insurance papers and that “Acevedo was not
intimidated” because the Board applies an objective standard. See
Santa Fe Tortilla Co., 360 NLRB 1139, 1140 fn. 9 (2014).
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(1) and engaged in objectionable conduct when Safety Director
Aleksei Feliz threatened that wages would decrease if the Union won
the election, we do not rely on Westwood Horizons Hotel, 270 NLRB
802 (1984), and PPG Industries, 350 NLRB 225 (2007), cited by the
judge, because those cases involve third-party threats. Instead, we rely
on President Riverboat Casinos of Missouri, 329 NLRB 77, 77 fn. 5
(1999). We find it unnecessary to pass on the judge’s additional find-
ing that the Respondent violated Sec. 8(a)(1) and engaged in objection-
able conduct when Foreman Brent McNett stated that it probably would
not be good for wages if the Union won the election. Such a finding
would be cumulative and would not materially affect the remedy.
only to the extent consistent with this Decision, Order,
and Direction; to amend the conclusions of law and rem-
edy; and to adopt the recommended Order as modified
and set forth in full below.4
This is a consolidated unfair labor practice and repre-
sentation case. For the reasons set forth below, we af-
firm the judge’s conclusion that the Respondent violated
Section 8(a)(3) and (1) of the Act and engaged in objec-
tionable conduct by suspending and discharging employ-
ees Luis Acevedo and Walter Stevenson. However, we
reverse the judge and find that the Respondent also vio-
lated Section 8(a)(3) and (1) and engaged in objectiona-

We agree with the judge that the Respondent’s Sec. 8(a)(1) and (3)
violations and objectionable conduct warrant setting aside the election
if the Union does not receive a majority of the votes cast after the over-
ruled challenged ballots are opened and counted. Dal-Tex Optical Co.,
137 NLRB 1782, 1786–1787 (1962). However, we note that the Dal-
Tex principle that elections will not be set aside where the 8(a)(1) viola-
tions are so minimal or isolated that “‘it is virtually impossible to con-
clude that the misconduct could have affected the election results’” has
never been applied to 8(a)(3) violations. See Lucky Cab Co., 360
NLRB 271, 277 (2014) (quoting Clark Equipment Co., 278 NLRB 498,
505 (1986)). Because we endorse the judge’s conditionally setting
aside the election for these reasons, we find it unnecessary to pass on
the judge’s finding that the Respondent failed to substantially comply
with the Board’s voter list requirements. Finally, we do not rely on
Kingspan Benchmark, 359 NLRB 248 (2012), cited by the judge. See
NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).
Chairman Kaplan joins his colleagues in conditionally setting aside
the election based on the Respondent’s unfair labor practices, and he
agrees that the “virtually impossible” exception of Clark Equipment,
supra, does not apply here. However, regarding their observation that
this exception “has never been applied to 8(a)(3) violations,” Chairman
Kaplan echoes the counter-observation of former Member Johnson: the
Board has never held that this exception should never apply to 8(a)(3)
violations—not even, in the context of a lopsided vote, to an 8(a)(3)
violation that affects one or few employees and involves no loss of
employment. See Lucky Cab Co., 360 NLRB at 277 fn. 22.
As agreed to by the Respondent and the General Counsel, we have
corrected several inadvertent errors made by the judge in his decision.
We deny the Respondent’s and the General Counsel’s respective excep-
tions regarding additional alleged errors. Finally, we reject the Re-
spondent’s assertion that the judge’s errors warrant dismissal of the
complaint. See, e.g., Long Island Nursing Home, 297 NLRB 47, 47 fn.
2 (1989) (correcting several errors in judge’s decision and noting that
they did not affect the disposition of the case).
4 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997). We shall also modify
the judge’s recommended Order to conform to our findings and to the
Board’s standard remedial language. We shall substitute a new notice
to conform to the Order as modified.
The General Counsel seeks a make-whole remedy that includes con-
sequential damages incurred as a result of the Respondent's unfair labor
practices. The relief sought would require a change in Board law.
Having duly considered the matter, we are not prepared at this time to
deviate from our current remedial practice. Accordingly, we decline to
order this relief at this time. See Laborers’ International Union of
North America, Local Union No. 91 (Council of Utility Contractors,
Inc. and Various Other Employers), 365 NLRB No. 28, slip op. at 1 fn.
2 (2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ble conduct by more strictly enforcing its fall-protection
policy. As to the representation issues, we affirm the
judge’s overruling of the Respondent’s challenges to
nine ballots, but we reverse the judge and sustain the
Respondent’s challenge to one ballot.
Facts
The Respondent is a masonry contractor in Florida.
From at least May 1, 2004, to April 30, 2016, the Re-
spondent and the Union maintained a 8(f) relationship.
The Union filed a petition to represent the Respondent’s
bricklayers and masons pursuant to Section 9(a) on April
29, 2016,5 after the Respondent expressed its intention
not to renew the parties’ 8(f) agreement. Luis Acevedo
and Walter Stevenson worked as bricklayers for the Re-
spondent from January 25 to May 16.
In February, Safety Coordinator Fernando Ramirez
trained Acevedo and Stevenson regarding the Respond-
ent’s fall-protection policy, which requires employees
working at or above a height of 6 feet with exposure to a
fall to wear designated safety equipment. Ramirez in-
structed the employees not to hook their retractors direct-
ly to scaffolding. However, he did not explain or
demonstrate how to safely tie off to scaffolding.
In early May, Safety Director Aleksei Feliz held a
meeting with eight employees at the University of Tampa
(UT) jobsite in which he urged the employees to vote
against the Union and stated that wages would decrease
if the Union won the election. Acevedo, who was an
open union supporter, challenged Feliz’s assertion, elicit-
ing a silent glare from Feliz.
On May 16, Foreman Brent McNett held a prework
safety meeting at the UT jobsite. He reminded employ-
ees about the fall-protection policy because some em-
ployees, including Acevedo and Stevenson, were being
moved from outside to inside work and they had not pre-
viously been required to wear safety harnesses. McNett
warned that violations of the policy would result in dis-
charge, but he did not demonstrate or explain how to
properly wear or tie off the safety harnesses.6
Shortly after the meeting, Foreman Mario Morales dis-
covered partners Acevedo and Stevenson not wearing
safety harnesses. Morales directed them to retrieve their
harnesses and informed McNett. Soon thereafter,
McNett observed Acevedo and Stevenson improperly

5 All dates are in 2016 unless otherwise noted.
6 We do not rely on the judge’s statement that the Respondent’s
“foremen became lax in their enforcement” of the policy “while work
was being performed outside of the UT structures.” It is undisputed
that fall-protection equipment was not required while employees
worked outside at the UT site in April and early May. There was no
risk of falling because employees working on the wall were protected
by metal guardrails on the remaining three sides.
tied off to the scaffolding. McNett warned them about
the fall risk, corrected their equipment, and asked if they
had been trained on tying off. They denied receiving
training. McNett reported the incident to Feliz and asked
whether the employees had been trained. Feliz then
called Ramirez and directed him to investigate. Ramirez
found records from the February safety training he con-
ducted that reflected the attendance of Acevedo and Ste-
venson. He showed the records to McNett and the two
employees, who admitted that they had been trained.
Ramirez called Feliz, who directed him to suspend
Acevedo and Stevenson for the day. Neither employee
had received any prior discipline.
That evening, Feliz took the unprecedented step of tel-
ephoning the Respondent’s owners, Ron and Richard
Karp, to discuss the incident. Although Feliz was fully
authorized to decide Acevedo and Stevenson’s disci-
pline, he contacted the Karps because he knew Acevedo
was a union supporter and the election was a week away.
The decision was made to terminate both employees.
The next day, McNett informed Acevedo and Stevenson
that they were discharged. Other employees who tied off
incorrectly on May 16 were not discharged or disciplined
for their violations.
Prior to May 16, the Respondent did not follow a con-
sistent “zero tolerance” fall-protection policy that man-
dated discharge for a violation of the policy. Rather, the
Respondent merely warned and suspended several em-
ployees for their first and second violations. Indeed, in a
February 2016 report to the Florida unemployment com-
pensation agency, the Respondent described the conse-
quence of violating its policy as “[f]irst and second warn-
ings, third discharge.”
From May 25 to June 9, the Region conducted a mail-
ballot election pursuant to a stipulated election agree-
ment. The revised tally of ballots shows 16 votes for and
16 votes against the Union, with 14 determinative chal-
lenged ballots. Ten of the challenged ballots are before
the Board: those of Acevedo, Stevenson, John Smith,
David Wrench, Jacob Barlow, Dustin Hickey, Forest
Greenlee, Jeremy Clark, George Reed, and Raymond
Pearson.
Discussion
1. Acevedo’s and Stevenson’s suspensions and
discharges
For the reasons that follow, we affirm the judge’s con-
clusion that the Respondent violated Section 8(a)(3) and
(1) and engaged in objectionable conduct by suspending
and discharging Acevedo and Stevenson because of
Acevedo’s union activity. See Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 3
denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
As an initial matter, the Respondent concedes knowledge
of Acevedo’s union activity and support. Further, the
judge’s finding that Acevedo’s partner Stevenson was
“collateral damage” is well supported by Board prece-
dent. See, e.g., Adam Wholesalers, 322 NLRB 313, 314
fn. 7, 329–330 (1996) (finding 8(a)(3) violation where
respondent pretextually disciplined coworker accompa-
nying principal union organizer; coworker’s warning
stemmed from being “with the wrong person at the
wrong time”).
We also agree with the judge that the Respondent’s an-
imus is well established by the close timing of the dis-
charges to the election and the Respondent’s other unfair
labor practices. The Respondent’s decision to discharge
Acevedo, an open union supporter, and Stevenson just 8
days before the ballots were mailed is suspect. See Red-
wing Carriers, Inc., 224 NLRB 530, 531 (1976) (dis-
charge 1 week before election supports animus). Indeed,
as recognized by the Board and reviewing courts,
“‘[t]iming alone may suggest antiunion animus as a mo-
tivating factor in an employer’s action.’” Inova Health
System v. NLRB, 795 F.3d 68, 82 (D.C. Cir. 2015) (quot-
ing Masland Industries, 311 NLRB 184, 197 (1993)).
Further, as noted above, the Respondent violated Section
8(a)(1) by threatening employees that their wages would
be reduced if the union won the election. See Continen-
tal Radiator Corp., 283 NLRB 234, 237 (1987) (threat to
reduce wages supports animus). This threat is particular-
ly probative of the Respondent’s animus because it was
made by Safety Director Feliz and challenged by Aceve-
do, eliciting a silent glare from Feliz. Just days later,
Feliz was involved in the decision to suspend and dis-
charge Acevedo and Stevenson.7
We find, in agreement with the judge, that the Re-
spondent’s animus is further demonstrated by its dispar-
ate treatment of Acevedo and Stevenson. See Pollock
Electric, Inc., 349 NLRB 708, 709–710 (2007). The
Respondent suspended and discharged Acevedo and Ste-
venson for their first violations of the fall-protection pol-
icy. However, the Respondent merely warned and sus-
pended several other employees for their first and second
violations of the policy. For example, Brandon Carollo
received a suspension for his first violation (working
without fall-protection equipment), a suspension for his
second violation (failing to be tied by a harness), and was
only discharged following his third violation (working
without a harness and insubordination). The Respondent

7 As we discuss below, the Respondent also violated Sec. 8(a)(3)
and (1) by more strictly enforcing its fall-protection policy.
suspended Timothy Bryant and Richard Haser for their
first violations of the policy: Bryant was sent home for 2
days for not wearing a harness or being connected to an
anchor point and Haser was sent home and required to
complete a safety orientation for failing to tie off. Addi-
tionally, we agree with the judge that Timothy Golphin’s
and Jaswin Leonardo’s discharges for their first viola-
tions of the policy were not comparable because both
engaged in “severe compound [safety] violations.” In
addition to this disparate treatment, the Respondent’s
animus is further evidenced by its decision to change the
level of Acevedo and Stevenson’s discipline, after con-
sultation with the Respondent’s owners, from a one-day
suspension straight to discharge.
Contrary to the Respondent’s assertion, its labeling of
the fall-protection policy as “zero tolerance” provides no
defense. As an initial matter, the disparate treatment
evidence discussed above shows that the Respondent has
not in fact followed a zero tolerance fall-protection poli-
cy. Similarly, when reporting to the Florida unemploy-
ment compensation agency, the Respondent stated that
violations of the policy would result in “[f]irst and sec-
ond warnings, third discharge,” not that it was a zero
tolerance policy.
Nor do we find merit to the Respondent’s argument
that it did not discharge other employees for their first
violations of the policy because general contractors, and
not the Respondent, discovered the violations. The evi-
dence does not support the Respondent’s contention that
its purported “zero tolerance” policy applies only to vio-
lations observed by the Respondent’s personnel. Signifi-
cantly, the Respondent did not discharge Bryant for his
first violation of the fall-protection policy even though its
safety coordinator, Ramirez, observed the violation.
While the Respondent argues that Bryant’s continued
employment was due to numerous administrative errors
and oversight, its convoluted defense is simply not credi-
ble.
Finally, we agree with the judge that the Respondent’s
proffered reasons for the suspensions and discharges
were pretextual. In addition to the reasons cited by the
judge, we find that Feliz’ unprecedented and suspicious
decision to contact Owners Ron and Richard Karp, after
which the suspensions of Acevedo and Stevenson were
escalated to discharges, demonstrates pretext. We also
rely on the judge’s crediting of Acevedo’s and Steven-
son’s testimony that other employees were not tied off
properly on the same day as Acevedo and Stevenson, yet
none were disciplined for their violations of the policy.8

8 We find it unnecessary to rely on the Respondent’s anti-union
campaign as background evidence of animus. We find that the record
amply demonstrates the Respondent’s animus for the other reasons
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Having found that the Respondent’s stated reasons for
the suspensions and discharges were pretextual, the Re-
spondent has failed by definition to meet its rebuttal bur-
den of proving that it would have suspended and dis-
charged Acevedo and Stevenson in the absence of
Acevedo’s union activity. See Golden State Foods
Corp., 340 NLRB 382, 385 (2003).
Accordingly, we affirm the judge’s conclusion that the
Respondent violated Section 8(a)(3) and (1) and engaged
in objectionable conduct by suspending and discharging
Acevedo and Stevenson.
2. Stricter enforcement of fall-protection policy
Stricter enforcement of a rule because of employees’
union activity violates Section 8(a)(3) and (1). See Neis-
es Construction Corp., 365 NLRB No. 129, slip op. at 3
(2017). The judge dismissed the stricter enforcement
allegation in this case because he “was not convinced
that the [Respondent] resumed enforcement of the [fall-
protection] policy solely because of the impending . . .
election or for the purpose of trapping [Acevedo] and
Stevenson in a violation” and because the policy “was
mandated by law.” We find that the judge erred in both
respects.
As a preliminary matter, the judge mischaracterized
the nature of the complaint. The complaint alleges that
the Respondent violated Section 8(a)(3) and (1) by more
strictly enforcing its fall-protection policy against

stated above. See CSC Holdings, LLC and Cablevision Systems New
York City Corp., 365 NLRB No. 68, slip op. at 5 fn. 16 (2017).
Contrary to the suggestion of the judge, we note that “proving that
an employee’s protected activity was a motivating factor in the em-
ployer’s action does not require the General Counsel . . . to demonstrate
some additional, undefined ‘nexus’ between the employee’s protected
activity and the adverse action.” See Libertyville Toyota, 360 NLRB
1298, 1301 fn. 10 (2014), enfd. sub nom. AutoNation, Inc. v. NLRB,
801 F.3d 767 (7th Cir. 2015). Chairman Kaplan agrees that there is no
separate and distinct “nexus” element that the General Counsel must
satisfy under Wright Line, supra. He emphasizes, however, that Wright
Line is inherently a causation test. Thus, identification of a causal
nexus as a separate element the General Counsel must establish to
sustain his burden of proof is superfluous because “[t]he ultimate in-
quiry” is whether there is a nexus between the employee’s protected
activity and the challenged adverse employment action. Chevron Min-
ing, Inc. v. NLRB, 684 F.3d 1318, 1327–1328 (D.C. Cir. 2012). Chair-
man Kaplan reads the judge’s decision to state no more than that. To
the extent his colleagues suggest that the General Counsel invariably
sustains his burden of proof under Wright Line whenever, in addition to
protected activity and knowledge thereof, the record contains any evi-
dence of animus, Chairman Kaplan disagrees. See, e.g., Roadway
Express, Inc., 347 NLRB 1419, 1419 fn. 2 (2006) (finding that, alt-
hough there was some evidence of animus in the record, it was insuffi-
cient to sustain the General Counsel’s initial Wright Line burden of
proof); Atlantic Veal & Lamb, Inc., 342 NLRB 418, 418–419 (2004)
(finding insufficient facts to show that the respondent’s animus against
employee Rosario’s union activity was a motivating factor in the deci-
sion not to recall him), enfd. 156 Fed. Appx. 330 (D.C. Cir. 2005).
Acevedo and Stevenson because of employees’ union
activity, not because of the election or in order to trap the
discriminatees in a violation.
Additionally, the judge erred by stating that there can
be no violation because the policy is mandated by law.
Contrary to the judge, the Board has previously found
stricter enforcement violations in these circumstances.
For example, in Story Oldsmobile, Inc., 244 NLRB 835,
837–838 (1979), the Board found that the respondent
violated Section 8(a)(3) and (1) by more strictly enforc-
ing an Occupational Safety and Health Administration
(OSHA) rule regarding safety glasses and hardhats be-
cause of employees’ union activity. Therefore, the fact
that OSHA requires employees to utilize appropriate
safety equipment when working at or above a height of
10 feet does not preclude the Board’s finding of a viola-
tion.9
We find that the record, particularly the evidence of
disparate treatment, strongly demonstrates that the Re-
spondent more strictly enforced its fall-protection policy
because of employees’ union activity. Indeed, the judge
stated that in view of the disparate treatment of Acevedo
and Stevenson, they would not have been discharged in
the absence of union activity. In Neises, 365 NLRB No.
129, slip op. at 3, the Board found that the respondent
unlawfully enforced its attendance policy more strictly
when discharging one employee and reprimanding two
other employees in retaliation for employees’ union ac-
tivity. Similarly, in St. John’s Community Services-New
Jersey, 355 NLRB 414, 414–415 (2010), the Board
found unlawful the respondent’s stricter enforcement of
its medication administration policy, including by dis-
charging one employee, in retaliation for employees’
support of the union. As detailed above, the Respondent
previously warned and suspended several employees for
their first and second violations of the policy, and the
Respondent only enforced its policy in a strict, “zero
tolerance” manner against Acevedo and Stevenson, an
open union supporter and his partner, just days before the
election. The Respondent’s sole defense—that it has
always enforced its policy in a “zero tolerance” man-
ner—is plainly contradicted by the record. As in Neises
and St. John’s, the Respondent more strictly enforced its
fall-protection policy against Acevedo and Stevenson
because of employees’ union activity.
Accordingly, we reverse the judge and find that the
Respondent violated Section 8(a)(3) and (1) and engaged

9 The Respondent’s fall-protection policy, which requires employ-
ees to use safety equipment when working at heights of 6 feet or above,
is stricter than OSHA’s rule. Moreover, nothing in OSHA’s rule re-
quires employers to discharge employees for violating the rule, let
alone for a first infraction.
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 5
in objectionable conduct by more strictly enforcing its
fall-protection policy.10
3. Challenged ballots
Ten determinative challenged ballots are before the
Board. The Respondent challenged the ballots of
Acevedo, Stevenson, Smith, and Pearson on the ground
that those four individuals were terminated for cause and
the ballots of Wrench, Barlow, Hickey, Greenlee, Clark,
and Reed on the ground that these six voluntarily quit.
The judge overruled the Respondent’s challenges, find-
ing that Acevedo and Stevenson were unlawfully dis-
charged and that the other eight employees had been laid
off with a reasonable expectation of recall and therefore
were eligible to vote.11 As the party challenging the em-
ployees’ eligibility to vote, the Respondent bears the
burden of proof. See Sweetner Supply Corp., 349 NLRB
1122, 1122 (2007). For the reasons set forth below, we
sustain the Respondent’s challenge to Pearson’s ballot,
but affirm the judge’s overruling of the Respondent’s
challenges to the remaining nine ballots.12
The record contains ample evidence indicating that
Smith, Wrench, Barlow, Hickey, Greenlee, Clark, and
Reed were laid off and thus were eligible to vote. Signif-
icantly, all of these employees left the Respondent’s Be-
thune-Cookman University (BCU) project in January or
April when work on the project was in successive phases
of winding down. Indeed, most block work was com-
pleted in January, and Foreman McNett admitted that the
last brick was laid on April 8. Further, the judge fully
credited Smith’s and Wrench’s testimony that they had
been laid off, and their testimony is supported by the
Respondent’s re-employment of Smith (who the Re-
spondent alleged was terminated for cause) and the Re-
spondent’s failure to contest Wrench’s filing for unem-
ployment benefits.13 The judge also credited Union Rep-
resentative Mike Bontempo’s testimony that Foreman
Robert Dutton told him that Reed was laid off. Bontem-

10 Nothing in the Board’s Decision, Order, and Direction prevents
the Respondent from enforcing its safety rules, or from more strictly
enforcing its safety rules, for non-discriminatory reasons. The Re-
spondent is only prohibited from doing so in a discriminatory manner
in response to protected activity.
11 The Respondent contends only that ten individuals were ineligible
to vote because they were either discharged for cause or quit. It does
not contend in the alternative that if any of the ten are found to have
been laid off, they are still ineligible to vote because they worked too
few days to qualify for eligibility under the Steiny/Daniel formula. See
Steiny & Co., 308 NLRB 1323 (1992); Daniel Construction Co., 133
NLRB 264 (1961), as modified at 167 NLRB 1078 (1967).
12 We affirm the judge’s overruling of the Respondent’s challenges
to Acevedo’s and Stevenson’s ballots based on our finding that the
Respondent discriminatorily discharged them.
13 Employees who voluntarily quit their employment generally are
not eligible to receive unemployment benefits.
po’s testimony is supported by the fact that the Respond-
ent did in fact reemploy Reed. Additionally, Smith,
Wrench, Barlow, Hickey, Greenlee, and Clark left with a
group, which is more likely indicative of a lay off than a
group of employees coincidentally quitting on the same
day. The Respondent also included Smith, Barlow,
Hickey, Greenlee, and Clark on its initial voter list and
identified them as laid off based on its payroll records.
Finally, in addition to Smith and Reed, the Respondent
has since re-employed Greenlee.
We find that the Respondent failed to present suffi-
cient reliable evidence to sustain its burden of proof re-
garding these seven challenged voters. The Respondent
relies on Reason For Leaving (RFL) forms and personnel
records to support its claim that the employees were ter-
minated for cause or voluntarily quit. However, these
documents are inconsistent with the initial voter list,
which the Respondent prepared based on its payroll rec-
ords. As noted above, five of the challenged voters were
identified as laid off on the voter list. We find that this
inconsistency demonstrates that the Respondent’s per-
sonnel records are not sufficiently reliable. Moreover,
the RFL forms and personnel records are contradicted by
credited testimony that the challenged voters were laid
off, the Respondent’s reemployment of Smith, Reed, and
Greenlee, and the Respondent’s failure to contest
Wrench’s filing for unemployment benefits. As dis-
cussed above, the Respondent’s actions indicate that the
challenged voters did not voluntarily quit and were not
terminated for cause.14 In support of its challenges, the
Respondent also relies on testimony from foremen and
Human Resources (HR) personnel. However, the judge
discredited the testimony of Foreman McNett regarding
Barlow, Hickey, and Clark as vague. Furthermore, in
crediting Smith, Wrench, and Bontempo, the judge im-
plicitly discredited the contrary testimony of the Re-
spondent’s witnesses. Therefore, we affirm the judge’s
overruling of the Respondent’s challenges to the ballots
of Smith, Wrench, Barlow, Hickey, Greenlee, Clark, and
Reed.
By contrast, we find that the Respondent met its bur-
den of proving that Pearson was terminated for cause and
therefore was ineligible to vote in the election. In sup-
port of its challenge, the Respondent presented testimony
from two foremen regarding the poor quality of Pear-
son’s work and his discharge for failing to correct faulty
blocks laid by another mason, testimony from HR per-
sonnel, and Pearson’s RFL Form and personnel record.
Additionally, we note that Pearson left the Respondent’s

14 We do not rely on the judge’s finding that the RFL forms are un-
reliable because they were not provided to employees and employees
did not have an opportunity to dispute their accuracy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Westshore Yacht Club project in February, which was
not a time when work on the project was in a winding-
down phase. Further, unlike many of the other chal-
lenged voters, Pearson did not leave with a group, was
not included on the initial voter list, and has not since
been re-employed by the Respondent. In overruling the
Respondent’s challenge to Pearson’s ballot, the judge
relied solely on Pearson’s testimony that Foreman Coy
Hale later told him that the Respondent would call him
for future work. This conversation took place after Pear-
son’s employment with the Respondent had ended and
shortly before he moved to another state, months after
the eligibility period ended. Having considered all of the
evidence, we reverse the judge and sustain the Respond-
ent’s challenge to Pearson’s ballot.
Accordingly, we will direct the Regional Director to
open and count the ballots of Acevedo, Stevenson,
Smith, Wrench, Barlow, Hickey, Greenlee, Clark, and
Reed and, as appropriate, either issue a certification of
representative or conduct a second election.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening that employees’ wages will decrease
if they select the Union, the Respondent violated Section
8(a)(1) of the Act.
4. By suspending Luis Acevedo and Walter Stevenson
on May 16, 2016, and discharging them on May 17,
2016, because Luis Acevedo supported the Union, the
Respondent violated Section 8(a)(3) and (1) of the Act.
5. By more strictly enforcing its fall-protection policy
against Luis Acevedo and Walter Stevenson because of
employees’ union activity, the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
6. The aforementioned unfair labor practices affected
commerce within the meaning of Section 2(6) and (7) of
the Act.
7. The challenged votes of Luis Acevedo and Walter
Stevenson, unlawfully discharged, should be counted. In
addition, the challenged votes of the following laid-off
employees should be counted: John Smith, David
Wrench, Jacob Barlow, Dustin Hickey, Forest Greenlee,
Jeremy Clark, and George Reed. The challenged votes
of the following employees should not be counted:
Raymond Pearson, who was terminated for cause, and
Robert Harvey, Robert Baker, Mark France, and Robert
Pietsch, who voluntarily resigned from the Respondent
during the Steiny/Daniel period.
8. The Respondent’s conduct during the critical pre-
election period, as alleged in Objections 1, 2, and 8, was
objectionable and tended to interfere with the election.
Objections 3 and 9 are overruled, and Objections 4 and 5
are not passed upon.
9. The Respondent’s unfair labor practices and objec-
tionable conduct warrant setting aside the election if the
Union does not receive a majority of votes cast after the
overruled challenged ballots are opened and counted.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily suspended
and discharged Luis Acevedo and Walter Stevenson,
must offer them reinstatement and make them whole for
any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
In accordance with our recent decision in King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. 859 F.3d 23
(D.C. Cir. 2017), we shall also order the Respondent to
compensate Acevedo and Stevenson for their search-for-
work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.
Additionally, the Respondent shall be required to
compensate Acevedo and Stevenson for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and to file with the Regional Director for Region
12, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay to the appropriate calendar years.
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
Finally, we shall order the Respondent to remove from
its files any reference to Acevedo’s and Stevenson’s un-
lawful suspensions and discharges and to notify them in
writing that this has been done and that the unlawful sus-
pensions and discharges will not be used against them in
any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Advanced Masonry Associates, LLC, d/b/a
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 7
Advanced Masonry Systems, Sarasota, Florida, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening that employees’ wages will decrease
if they select the Union as their collective-bargaining
representative.
(b) Discharging, suspending, or otherwise discriminat-
ing against its employees because they engage in union
or other protected concerted activity or to discourage
them from voting in a representation election.
(c) More strictly enforcing its fall-protection policy
because of employees’ union activities or support.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Luis Acevedo and Walter Stevenson full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or to any other rights or privileges previously
enjoyed.
(b) Make Acevedo and Stevenson whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision as amended in
this decision.
(c) Compensate Acevedo and Stevenson for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 12, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sions and discharges, and within 3 days thereafter, notify
the employees in writing that this has been done and that
the suspensions and discharges will not be used against
them in any way.
(e) Within 14 days after service by the Region, post at
all of its active jobsites copies of the attached notice
marked “Appendix” in both English and Spanish.15 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 12, after being signed by the Respond-
ent’s authorized representative, shall be posted by the

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by other material. If the Respondent
has gone out of business or closed the facilities involved
in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 1, 2016.
(f) Within 14 days after service by the Region, mail
copies of the attached notice marked “Appendix” in both
English and Spanish, at its own expense, to all employ-
ees who were employed by the Respondent at its Florida
jobsites at the University of Tampa in Tampa, Florida
Bethume-Cookman University in Daytona Beach,
Westshore Yacht Club in Tampa, the Hermitage in St.
Petersburg, and the Holiday Inn Express in St. Petersburg
at any time since May 1, 2016, until the completion of
these employees’ work at that jobsite. The notice shall
be mailed to the last known address of each of the em-
ployees after being signed by the Respondent’s author-
ized representative.
(g) Within 21 day after service by the Region, file
with the Regional Director for Region 12 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
12 shall, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballots of Luis
Acevedo, Walter Stevenson, John Smith, David Wrench,
Jacob Barlow, Dustin Hickey, Forest Greenlee, Jeremy
Clark, and George Reed and issue a revised tally. If the
revised tally of ballots shows that the Union received a
majority of the eligible votes cast, the Regional Director
shall issue a certification of representative. Alternative-
ly, if the revised tally shows that the Union has not pre-
vailed in the election, the election shall be set aside and a
second election shall be conducted at such time as the
Regional Director deems appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Dated, Washington, D.C. April 13, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten that wages will decrease if you
select Bricklayers and Allied Craftsworkers, Local 8
Southeast (the Union) as your collective-bargaining rep-
resentative.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any of you because you engage in un-
ion or other protected concerted activity or to discourage
you from voting in a representation election.
WE WILL NOT more strictly enforce our fall-protection
policy because of your union activities or support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Luis Acevedo and Walter Stevenson full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or to any other rights or
privileges previously enjoyed.
WE WILL make Acevedo and Stevenson whole for any
loss of earnings and other benefits resulting from their
discharges, less any net interim earnings, plus interest,
and WE WILL also make them whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Acevedo and Stevenson for the
adverse tax consequences, if any, of receiving lump sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 12, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions and discharges of Acevedo and Steven-
son, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the suspen-
sions and discharges will not be used against them in any
way.
ADVANCED MASONRY ASSOCIATES, LLC D/B/A
ADVANCED MASONRY SYSTEMS
The Board’s decision can be found at
www.nlrb.gov/case/12-CA-176715 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Caroline Leonard, Esq., for the General Counsel.
Gregory A. Hearing and Charles J. Thomas, Esqs. (Thompson,
Sizemore, Gonzalez & Hearing, P.A.), of Tampa, Florida,
for the Respondent.
Kimberly C. Walker, Esq., of Fairhope, Alabama, for the
Charging Party.
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 9
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. These con-
solidated cases were tried in Tampa, Florida, on February 6–10,
2017. The amended unfair labor practice complaint alleges that
Advanced Masonry Associates , LLC d/b/a Advanced Ma-
sonry Systems (the Company or Respondent) sought to un-
dermine support for the Bricklayers and Allied Craftworkers,
Local 8 Southeast (the Union) by unlawfully interrogating,
threatening, and discharging employees prior to a representa-
tion election that ended in a 16–16 tie vote in violation of Sec-
tions 8(a)(1) and (3) of the National Labor Relations Act.1 In
the representation case, the Union seeks to have the challenged
votes of 14 former employees counted. In addition, the Union
contends that, if the challenged votes do not result in its favor,
the Company’s objectionable conduct, which consists of the
alleged unfair labor practices and certain other conduct, war-
rants a rerun of the election.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Company, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Company is engaged in business as a masonry contrac-
tor in the construction industry performing commercial con-
struction at jobsites throughout the State of Florida where it
annually purchases and receives goods valued in excess of
$50,000 directly from points located outside the State of Flori-
da and from enterprises located within the State of Florida, each
of which received the goods directly from points located out-
side the State of Florida. The Company 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 the Union and its
predecessor entity, Bricklayers and Allied Craftworkers,
Local 1, Florida, have been labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONABLE
CONDUCT
A. The Company’s Operations
The Company’s masonry projects are procured by competi-
tive bids and are located across the State of Florida, primarily
in the central and southwestern parts of the state. Richard and
Ron Karp, the principles and owners, are based out of the
Company’s Sarasota, Florida headquarters. Ron Karp is primar-
ily responsible for negotiating and finalizing the Company’s
bids and contracts for work, and has very little involvement
with the Company’s day-to-day operations.2
Marc Carney, the chief of operations, oversees the foremen
on each jobsite and travels between jobsites, ensuring that all

1 29 U.S.C. §§ 151–169.
2 Richard Karp was present throughout the hearing, but did not testi-
fy and his role is unknown.
work is completed in accordance with contractual deadlines.
The foremen are responsible for ensuring the quality of the
work by masons and laborers, and are eligible for bonuses if
they finish a project ahead of schedule.
The standard Company workday for masons is 7 a.m. to 3:30
p.m. Employees are permitted two 15-minute breaks and a 30-
minute lunchbreak. During breaks, employees are permitted to
access food trucks stationed in adjacent parking lots.
The size of the Company’s skilled work force fluctuates de-
pending upon the scope of the project and the Company hires
and lays off masons as needed. The Company customarily
offers masons work at other locations upon completion of a job,
when available. Historically, the Company has requested the
referral of masons from the Union.
The Company’s personnel files for all employees are stored
at its Sarasota headquarters. The front of each file folder is
preprinted with a personnel information form, including contact
information and an employment history section, which indi-
cates date of hire, name of the supervising foreman, and dates
and reasons for separation as they occur.
During the relevant time period, the Company performed
masonry work at several jobsites in central Florida: Bethune-
Cookman University in Daytona Beach (Bethune); the
Westshore Yacht Club in Tampa (Westshore); the University of
Tampa (UT); the Hermitage in St. Petersburg (Hermitage); and
the Holiday Inn Express in St. Petersburg (Holiday Inn).3
B. Safety Training
Fall protection for work by masons and other trades perform-
ing work above certain elevations are governed by construction
industry standards and regulatory requirements of the Occupa-
tional Health and Safety Administration (OSHA). As such, the
Company maintains safety rules relating to fall protection,
along with any additional safety mandates invoked by its pro-
jects’ general contractors.
The Company’s employee handbook, effective January
2015, lays out the Company’s basic safety rules requiring em-
ployees to comply with them as a condition of employment.
(8.1). The basic rule requires employees to “[a]lways wear or
use appropriate safety equipment as needed. Wear appropriate
personal protective equipment, like . . . fall protection, when
working on an operation which is potentially hazardous.” Po-
tentially hazardous is further defined to encompass “all elevat-
ed locations.” (8.3). Violations of these safety rules, including
the failure to wear safety equipment, “can result in disciplinary
action, including termination.” (4.1).4
The Company’s safety rules are further implemented through
its policies and procedures. In essence, an employee working
at 6 feet or higher on a scaffold in a setting where a fall risk
exists must use appropriate protective equipment.5 Employees
are required to “wear a full body harness with a lanyard or re-
tractor in all elevated areas not protected by guardrails,” and
instructs that employees must never connect two lanyards, or a
retractor and a lanyard to each other. The policy also warns

3 Jt. Stip. 4–6.
4 R. Exh. 2.
5 The Company’s safety rule is stricter than the 10-foot requirement
promulgated by OSHA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
that the Company has “zero tolerance” toward, and will disci-
pline an employee who, violates the Company’s fall protection
rules after receiving the applicable safety training. 6
The Company safety director, Aleksei Feliz, and safety co-
ordinator, Fernando Ramirez, are responsible for providing
safety orientation to new employees at their jobsites. The train-
ing is supposed to include a demonstration of how to wear a
safety harness in conjunction with other equipment used to tie
the worker to an anchor point.7 They, as well as the foreman on
Company projects, are responsible for monitoring and enforc-
ing compliance safe working conditions and equipment. Fore-
men also deliver weekly “toolbox talks.” These talks are man-
datory prework meetings where foreman discuss various safety
topics. The employees are then supposed to be provided with
safety harnesses and other safety equipment, if they do not
already have them.
C. Bethune-Cookman University
At the Bethune jobsite, the Company’s masons constructed
four multistory dormitory buildings during the period of No-
vember 9, 2014, to June 19, 2016. The Company employed
between 50 and 70 masons at Bethune. The job had two phas-
es, with each phase consisting of work in the interior and exte-
rior of the structures, laying block, brick and concrete.
Brent McNett was foreman on the Bethune project from May
2015 until April 24, 2016, when he was replaced by Robert
Dutton. By January 2016, most block work was completed and
only brickwork remained. The brickwork was completed by
April 8, 2016. During that period, the mason workforce gradu-
ally diminished. Some were laid off, while others voluntarily
quit for other jobs. Once the masonry work at Bethune was
completed, the Company warranted the work for a 1-year peri-
od beginning on September 15, 2016.8
Of the 11 remaining individuals whose ballots were chal-
lenged, only one separated from the Company prior to January
2016. Robert Harvey was a mason employed on the Bethune
jobsite during 2015. He was one of numerous employees for
whom the Company provided hotel lodging. On October 9,
2015, the Company terminated Harvey for poor time and at-
tendance, and for “causing problems at the hotel.”9

6 Nowhere is it written that the Company’s enforcement of its “zero
tolerance” policy is limited to violations observed by Company safety
personnel and foreman, as opposed to violations observed by general
contractors’ representatives. (GC Exh. 2(a); R. Exhs. 4, 7. Neverthe-
less, that contention by Feliz was not disputed. (R. Exh. 2 at 8; R. Exh.
3; Tr. 80–81, 94, 98–100.)
7 R. Exh. 5–6.
8 McNett’s testimony that the Company did not lay off anyone prior
to April 8 was not credible. By that date, the “the last brick was laid” at
the Bethune project and the work force was significantly down from the
numbers in January and Carney conceded that the project essentially
concluded in April 2016. (Tr. 652–654, 707, 712, 718, 721, 815–816,
896, 1005.) By his own admission, some workers “were going to dif-
ferent jobs because they wanted to work. They didn’t want to quit
working with [the Company]; they wanted to stay working when it was
done.” (Tr. 653; R. Exh. 43–53.)
9 I based this finding on the somewhat inconsistent, but unrefuted,
testimony of McNett and Feliz, as corroborated by the termination
form, which referred to an “[a]ttached T.S.” (presumably referring to
On January 15, 2016, the Company pared its Bethune work
force to about 40 masons. At the time, the Company had nearly
completed the block portion and was beginning the brickwork.
McNett laid off several masons that day, including John Smith
and David Wrench, and told them to file for unemployment.
The Company, however, generated Reason for Leaving (RFL)
forms for each, incorrectly stating the grounds for their separa-
tion from the Company. Smith’s RFL form stated that he was
terminated for poor work performance and attendance, 10 while
the RFL form for Wrench, who worked 121 days during the
eligibility period and wore a union shirt on the job, stated that
he voluntarily quit.11
Robert Baker and Mark France, known union members, vol-
untarily quit the Bethune project on February 11, 2016.12 Rob-
ert Pietsch, another known union member, worked as a mason
on the Bethune project from September 2015 until he voluntari-
ly quit on March 18, 2016.13
Another group of masons, including Jacob Barlow and
Dustin Hickey, were laid off on or around April 1, 2016, as the
Bethune project wound down. Barlow and Hickey, known
union members, worked for the Company on and off over a
long period of time. McNett, however, incorrectly listed his
separation from the Company as “VQ”, i.e., voluntarily quit-
ting. In fact, McNett has continuously attempted to get Barlow,

Harvey’s timesheet) and “causing problems at the hotel.” (Tr. 656–657,
913–919, 926, 941–950; R. Exh. 29, 32, 60, 60(a).)
10 The testimony of McNett and Feliz, as well as the written entry on
the RFL form, that Smith was terminated for poor work performance
and attendance on January 15, 2016, were not credible for several rea-
sons. (Tr. 655–657, 1057–1058; R. Exh. 32.) First, Smith, who worked
fulltime on Bethune project since July 2015, has since been rehired by
the Company for other masonry jobs and, in fact, is currently working
for the Company. (CP Exh. 19; Tr. 714, 997–1000, 1004–1005.) Sec-
ondly, the Company’s identification of Smith as laid-off on the official
voter eligibility list was consistent with his testimony. (CP Exh. 2–3;
Tr. 999–1005.)
11 I based this finding on Wrench’s credible testimony, as corrobo-
rated by his uncontested filing for unemployment compensation bene-
fits. (Tr. 985–991, 1019; R. Exh. 27 at 1; CP Exh. 18.)
12 I credit the Company’s entries in the forms for Baker and France.
They were generated by Phelps based on information provided by
McNett. He conceded that he had made disparaging remarks about the
Union. Baker would have been eligible to vote based on his hours
worked prior to the election. (CP Exh. 14.) However, there was an
absence of evidence to refute McNett’s testimony that Baker and
France voluntarily quit. Moreover, the fact that France’s RFL form
was signed by Ron Karp, who lacked personal knowledge about
France’s departure, does not detract from the fact that the form was
otherwise created by Phelps in the ordinary course of recording reports
called in by foreman. (Tr. 654–655, 887–888, 891; R. Exh. 27 at 2, 28
at 1; CP Exh. 24(c) and (g).)
13 Pietch, who did not testify, was a known union member. (CP Exh.
17 and 27.) He would have been eligible to vote based on his hours
worked in the critical period. (CP Exh. 14.) However, I credit the
statements in Pietsch’s RFL form that he “[l]eft for another job (cash
pay job)” as made by Phelps based on information conveyed to by
telephone by Dutton. (R. Exh. 27 at 3.) That the form was signed-off by
another foreman on the project does not otherwise negate the rest of the
record as one made in the Company’s regular course of business. (Tr.
705–707.)
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 11
who is currently on another job, to return.14
Forest Greenlee also worked as a mason for the Company on
and off over a period of years. He worked on the Bethune pro-
ject until he was laid off “with a group of people” on April 2,
2016. He left with a reasonable expectation of recall and has
since been rehired by the Company.15
Jeremy Clark, another known union member, worked for the
Company on and off over a long period of time. He worked on
the Bethune job until the project started winding down and he
was laid off on April 4, 2016. He left with a reasonable expec-
tation of recall.16
George Reed, a known union member, has worked for the
Company as a mason on an off over a period of years. He was
referred to work on the Bethune job by Bontempo and worked
82 days between December 2015 and April 15, 2016, when he
was laid off. Dutton subsequently sought to recall Reed but, by
then, he had been referred to another job by Bontempo. Reed
did, however, return to the Company’s employ on August 22,
2016.17
D. Westshore Yacht Club
The Westshore condominium project in Tampa, Florida last-
ed from July 27, 2014, to September 18, 2016. The initial
foreman, Todd Wolosz, oversaw the block work until February
2016, when he was replaced by Coy Hale. Foreman Brian Can-
field oversaw the two concurrent projects in St. Petersburg, the
Hermitage and the Holdiay Inn jobsites.
On February 9, Ramirez presented a 75-minute safety orien-
tation at the Westshore jobsite parking lot. Ramirez conducted
the training without any scaffolding by showing and demon-
strating the use of safety equipment. The fall protection portion
of the training lasted about 30 minutes. Ramirez, who is bilin-
gual and fluent in Spanish, placed a harness on a dummy and

14 I do not credit McNett’s vague testimony that Barlow and Hickey
voluntarily quit. It is highly unlikely that a “large group” simply quit
on April 1 and find it likely that they were told to find other employ-
ment. The Company initially identified Barlow and Hickey, who it
employed on and off over a long period, as laid off in its voter eligibil-
ity lists. (CP Ex. 2, 3 and 26(a) and (c); Tr.707–708, 815–816, 1019,
1027; R. Exh. 27 at 4, 6; CP Exh. 2–3, 26(a), (c) and (d).)
15 The Company’s entry in the RFL form stating that Greenleee quit
was incorrect. (R. Exh. 27 at 7.) First, the Company initially identified
him as laid off in its voter eligibility lists. (CP Exh. 2–3, 26(d).) Sec-
ond, Greenlee was part of a “group” that left the project at the begin-
ning of April, an unlikely coincidence. Third, Greenlee has since been
rehired by the Company. (Tr. 815–816.)
16 In light of the admissions in the Company’s initial Excelsior lists
that Clark was laid off, I do not credit McNett’s vague testimony that
he voluntarily quit. Clark had worked intermittently for the Company
since 2014. (Tr. 710; CP Exh. 2–3, 24(f), 26(b); R. Exh. 27 at 5.)
17 The RFL signed by Ron Karp while compiling documents for this
case stated that, according to Dutton, Reed voluntarily quit on April 15,
2016, because “he found a better job.” (R. Exh. 28 at 2; Tr. 887–888,
891.) That representation was not credible. First, by April 15, the Be-
thune project was winding down. (Tr. 713, 907, 815–816.) Moreover,
Dutton testified, but failed to refute Bontempo’s credible testimony that
Dutton told him that Reed “was laid off, put on the couch temporarily.”
In addition, Bontempo’s testimony was corroborated by the Company
recalling him on August 22. (Tr. 894–910, 1017–1019, 1034, 1039–
1045, 1049.)
himself. He did not, however, attach a harness to scaffolding
and employees never had a chance to hook any of their equip-
ment to the scaffolding during the training.
Ramirez explained during the training that work at 6 feet or
higher, combined with exposure to a fall, required use of fall
protection at the Company, and demonstrated the proper way to
tie off using various pieces of protective equipment. He also
showed employees how not to tie off. Referring to the illustra-
tion, Ramirez instructed employees that the Company used
retractable lifelines when tying harnesses off to scaffolding in
order to have at least 3 feet of clearance from the ground fol-
lowing a fall. A safety strap could be used when the employ-
ee’s anchoring point was above his shoulders or on the scaffold
in conjunction with the lifeline if the employee looped the strap
inside of itself. These techniques, which Ramirez demonstrat-
ed, also gave the same minimum clearance.
Employees were instructed to drill a hole in the floor of the
building and insert a tie that springs open, locking the anchor
into the concrete.18 They were to then attach one end of their
retractor, to the loop in the tie, and attach the other end of the
retractor to their body harness.19 If needed, employees could
hook a nylon strap to the tie as an extension before attaching
the retractor. Employees were also shown a short lanyard with
a hook and told not to hook the short strap and the long nylon
strap together; only to hook the retractor to the long strap. If
employees could not use the tie in the floor, they were instruct-
ed instead to find something above them to hook into. Em-
ployees were also told not to hook the retractor directly to scaf-
fold., but were not otherwise instructed on how to safely tie off
to scaffolding.20
Discriminatees Luis Acevedo and Walter Stevenson com-
menced work as bricklayers on the Westhore project on January
25, 2016, the former having been referred by the Union.21 Both
attended the aforementioned safety training session. Acevedo
told Ramirez that he did not need a harness issued by the Com-
pany because he had his own, but needed only a safety strap
and a concrete anchor. Ramirez inspected Acevedo’s harness,
approved it, and later provided Acevedo with the additional
equipment needed. Several employees, including Acevedo and
Stevenson, asked questions during the orientation. Acevedo
asked how to tie off to anchor points, especially using the 6-
foot strap, which Ramirez explained. And in response to a
question from Stevenson, Ramirez emphasized to everyone in
attendance that anyone caught by the Company working at 6
feet or higher without proper use of fall protection would be
terminated pursuant to the Company’s zero tolerance policy on
this point. Both Acevedo and Stevenson signed the orientation
attendance sheet, as did the other employees in attendance at
Westshore that day.22

18 GC Exh. 20.
19 GC Exh. 24.
20 Stevenson and Acevedo provided similar estimates as to the dura-
tion of the fall protection orientation. (R. Exh.7; GC Exh. 2(a)-(b); (Tr.
414–17, 580, 583.)
21 Stevenson has never been a union member, although he became
aware of the Union’s campaign through information sent to him by the
Company in 2016. [Tr. 128.]
22 GC Exh. 2(c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Raymond Pearson, another former employee whose ballot
was challenged, worked as a mason on the Bethune and
Westshore projects. He worked 615 hours for the Company
from October 2015 through February 2016, which would be the
equivalent of 76 days during the eligibility period. Pearson, a
union member who wore union insignia on his hard hat and
shirts, was directed by foreman Coy Hale to correct faulty
blocks laid by another mason, who was terminated because of
the defective work. Pearson, however, failed to completely
straighten, or make plumb, the block columns at issue. As a
result, on February 10, 2016, Hale gave Pearson his final check
and told him he was no longer needed on the Westshore job.
Pearson was not discharged for cause, however, nor was he told
that he was not eligible for rehire. In fact, Hale later told him
that the Company would call him when it started another job.23
E. University of Tampa
The University of Tampa (UT) project entailed the construc-
tion of a two story sports complex, with work on both the inside
and outside of the structure. The Company employed masons
at that location from April 17 to July 24, 2016. McNett, assist-
ed by another foreman, Mario Morales, remained on the project
until its completion in July.24
Masons, working in pairs, initially worked on the outside of
each building for about 2 weeks, laying a brick veneer over the
new 40 to 50 foot high wall. Employees were not required to
wear harnesses or otherwise utilize personal fall protection.
They utilized scaffolding as they worked their way up the wall,
and had metal railings on the other three faces. The work was
followed by work on the building’s interior columns, which
were 12 to 14 feet tall. No safety orientation was conducted for
the employees at the UT jobsite.
In mid-April, the Company transferred Acevedo and Steven-
son to the UT site at the start of the brickwork phase. Acevedo
initially worked on the construction of the exterior walls of the
sports. After 2 or 3 weeks working on the exterior, Acevedo
was moved inside and started working on the building's interior
columns. Stevenson worked with different masons as the pro-
ject progressed.
Acevedo, an active union supporter, met with Union Repre-
sentative Mike Bontempo during visits to the site and openly
wore union shirts and stickers. He spoke with other employees
about the benefits of the Union, including insurance and retire-
ment. While working at the Westshore site, Acevedo also
spoke with his foreman about union dues not being deducted
from his paycheck even though he had submitted a dues author-
ization card. He spoke out at a meeting with his supervisor and
other employees in favor of the Union when the supervisor
spoke against the Union.25

23 It is undisputed that Pearson failed to satisfactory complete the as-
signment given him by Hale. However, there is insufficient credible
evidence that Hale actually informed Pearson that he was being termi-
nated for cause, like the coworker whose work he was trying to fix, for
poor work performance. (Tr. 505–508, 781–782, 790, 796–798, 837,
1008–1013; GC Exh. 12; CP Exh. 25(a)-(b); R. Exh. 31.)
24 JS at 7–9.
25 Acevedo’s testimony regarding protected concerted activity was
not disputed. (Tr. 392–412.)
F. The Union Files for 9(a) Labor Representation
The Company and the Union were parties to a collective-
bargaining agreement formed pursuant to Section 8(f) of the
Act covering the Company’s masons from at least May 1, 2004,
and until at least April 30, 2016.26 Pursuant to that agreement,
the Company paid masons an agreed-upon wage, and made
monetary contributions to the union health, retirement and other
funds based on hours worked by union masons, and later, for
hours worked by non-union masons as well. The Company
expressed its intention not to renew the Section 8(f) agreement
when it expired, causing the Union to file a petition on April
29, 2016, for certification as the labor representative of the
Company’s skilled work force pursuant to Section 9(a) of the
Act.
Pursuant to a Stipulated Election Agreement, approved on
May 6, 2016, an election was conducted via U.S. Mail to de-
termine whether employees of the Company wished to be rep-
resented for purposes of collective bargaining by the Union.
The voting unit consisted of:
All bricklayers and/or masons employed by the [Company],
excluding all other employees, office and clerical employees,
professional employees, guards and supervisors as defined in
the Act.
Voter eligibility was defined pursuant to the Board’s con-
struction industry formula set forth in Steiny & Co., 308 NLRB
1323 (1992), reaffirming Daniel Construction Co., 133 NLRB
264 (1961). Under the Steiny-Daniel formula, any mason em-
ployed (1) for at least 30 days during the 12-month period pre-
ceding April 29, 2016, or (2) for at least 45 days during the 24-
month period preceding April 29, 2016, could vote, with two
exceptions: employees terminated for cause, and employees
who quit voluntarily prior to the completion of the last job on
which they were employed.27
In preparation for the representation election, the Company
relied on its human resource records, including personnel files,
in generating its initial and amended Excelsior lists with the
names and contact information of eligible voters. The Union
generated its own list of eligible employees based on its copies
of the Company’s fringe benefit reporting forms.
Although the Company provided a voter list within the re-
quired 2 business days of the Stipulated Election Agreement,
the list did not include seven employees—Raymond Pearson,
Robert Baker, Mark France, Robert Harvey, Robert Pietsch,
George Reed and David Wrench—who worked a sufficient
number of hours for the Company in order to satisfy the
Steiny/Daniel eligibility formula agreed to by the parties.
However, four of these employees—France, Baker, Harvey and
Pietsch—voluntarily resigned from Company projects prior to
the election and, thus, they were rendered ineligible to vote.
The remaining three employees—Pearson, Reed and Wrench
were laid off and clearly satisfied the Steiny/Daniel eligibility
formula.28
On May 17, 2016, the Company filed and served an amend-

26 GC Exh. 14.
27 RD Exh.1(c) at 1–2.
28 It is undisputed that employees typically work an 8-hour workday.
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 13
ed Excelsior list. On at least three other occasions by electronic
communication with Region 12, the Company attempted to
amend the Excelsior list, including on May 20, 2016, to add an
eligible voter; 29 on May 23 to exclude six eligible voters;30 and
finally on May 24, 2016 to exclude six eligible voters.31
G. The Preelection Period
1. The union campaign
Since 2013, Michael Bontempo, a former Company employ-
ee and foreman, has served as the Union’s field representative.
He developed a good working relationship with Ron Karp and
Carney, and the Company would contact Bontempo to refer
union members to work on Company projects. The Company
hired many of Bontempo’s referrals. Commencing in 2014
during the Bethune project, Bontempo, with Carney’s agree-
ment, was permitted to meet with employees at the jobsite dur-
ing breaks, at lunchtime, and before and after work. After the
Union filed its petition for Section 9(a) representation, Bon-
tempo’s visits took on a new meaning.
On or about April 18, 2016, shortly after the UT job com-
menced, Bontempo visited the jobsite at about 3:30 p.m. after
first calling foreman Mario Morales. He informed Morales that
he had drinks and shirts to distribute to the workers. Bontempo
spoke to Acevedo, who told him that they were working over-
time that day and asked Bontempo to come back around 5 p.m.
Bontempo returned at 5 p.m. with beverages and union shirts to
distribute to any employees who wanted them. Acevedo took
two of the shirts. During the visit, Acevedo signed papers Bon-
tempo brought for him regarding the union insurance plan.
Bontempo also distributed union membership applications to
several masons, and Acevedo helped explain the benefits of
joining the Union to nonmember masons during the visit.
Bontempo’s interaction with Acevedo did not go unnoticed
by Morales. The following morning, Morales approached
Acevedo in the parking lot and asked him what papers he had
signed for the Union. Acevedo did not respond.32
After the representation petition was filed, Bontempo be-
came more aggressive in his efforts to reach out to the Compa-
ny’s masons. He began to visit the Company jobsites during
work periods, not just during break and lunchtime. He was
asked by McNett on one occasion to leave the UT jobsite be-
cause it was working time. He was asked at the Holiday Inn
jobsite by Canfield to speak to the workers after work. When
Bontempo ignored the request, saying he would be brief, Can-
field renewed the request and Bontempo acquiesced by waiting
in the parking lot until after work. On two occasions at the
Westshore jobsite, Hale caught Bontempo speaking to masons
during worktime. He told him that he could only speak to the

29 CP Exh. 4.
30 CP Exh. 5.
31 CP Exh. 6.
32 I credit Acevedo’s version of his encounter with Morales. Mo-
rales’ denial that he asked about the papers was not credible. He initial-
ly testified that Bontempo called him about handing out drinks and
shirts, and he acquiesced. However, he then attempted to walk that
back by attributing his knowledge about Bontempo’s activity to another
mason who was not called to testify. (Tr. 297–298, 406–407, 726–731,
740–747, 760–762, 765, 770–772, 787; GC Exh. 12.)
employees during lunchtime or after work and told Bontempo
to leave.33
2. Antiunion flyers distributed
Following the filing of the representation petition, both par-
ties actively campaigned for their respective positions. Com-
pany flyers urged a vote against union representation and were
mailed to employees or provided along with their paychecks.
Some company flyers highlighted that Florida is a “right-to-
work” state and accused the Union of corrupt practices, includ-
ing the misappropriation of union dues. The Union was re-
ferred to as the enemy and it was noted that the Company re-
cently lost a $6 million contract to a nonunion company.34 The
Union mailed flyers to its members and distributed union para-
phernalia to those interested in wearing them.
3. Threats of reduced wages
One day during early May 2016, with Feliz interpreting,
Richard Karp spoke to masons on the UT job about the upcom-
ing representation election. He explained that they would be
receiving a ballot, and that the Company wanted employees to
vote. In response to a mason’s question as to whether wages
would go down if they decided not to unionize, Richard Karp
answered that wages are determined by the market. 35
At lunchtime that day, Feliz followed up Richard Karp’s re-
marks with his own meeting with eight Spanish-speaking ma-
sons, including Acevedo. Feliz explained why the Company
opposed unionization and urged the employees to “vote for no,
no union, because the Union is taking our money.” He added
that a union victory would result in hourly wages dropping
from $22 to about $18 per hour. Acevedo challenged that as-
sertion, resulting in a silent glare from Feliz. Another mason
asked whether the Company would provide employees with
health insurance. Feliz responded that he did not have that in-
formation, but that, under the Affordable Care Act, he believed
that employers had to offer insurance to all employees. Feliz
concluded by imploring the employees not to vote for the Un-
ion.36
During the May 16 pre-work safety meeting with masons on
the UT job, McNett, who regularly disparaged the Union, men-
tioned the Union campaign that was underway. He shared his
opinion that it probably “won’t be good for wages” if the Union
won.37

33 Bontempo did not credibly dispute the testimony of several fore-
man—McNett, Canfield and Hale—regarding his visits to their jobsites
during worktime. (Tr. 276, 308, 643–644, 647–648, 822–823, 831–832,
643–647, 698–699, 725–732, 736–739, 743, 786–88, 822–824.)
34 GC Exhs.7(a)-(m).
35 This finding is based on Feliz’ credible and undisputed testimony.
(Tr. 103–106, 111–112.)
36 I credited Acevedo’s detailed testimony over that of Feliz. Feliz’
denial that he spoke about wages was contradicted by Gerardo Luna, a
mason who has been consistently employed by the Company over the
past 10 years. (Tr. 45–47, 92–93, 103–06, 409–12, 846–50, 911–12.)
37 McNett, who accused the Union of tricking employees into sign-
ing up and then stole their dues, essentially corroborated Stevenson’s
version of what he said at the meeting regarding the impact that unioni-
zation would have on wages. (Tr. 129–130, 648.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
H. Acevedo and Stevenson are Suspended for a
Fall Protection Violation
On Monday, May 16, 2016, employees began the day by at-
tending the mandatory prework safety meeting led by the UT
general contractor. That meeting was followed by a Toolbox
Talk led by McNett and Morales. Acevedo and Stevenson were
present. During the meeting, McNett reminded employees of
the Company’s fall protection rule. He explained that some
were being moved from outside work to inside work, and that
employees would have to tie off once at elevations of higher
than 6 feet.38 McNett also warned that anyone not properly tied
off would be fired. Neither McNett nor Morales, however,
issued instructions or demonstrated how to tie off under the
circumstances.
Prior to this meeting, neither Acevedo nor Stevenson had
been tying off. Nor did anyone say anything to them about
tying off. Neither Acevedo nor Stevenson asked any questions
about the need for fall protection, or how to tie off properly,
and neither alleged that OSHA regulations prohibited tying off
to scaffolding.
Shortly after the conclusion of the toolbox talk on May 16,
Morales toured the jobsite. Morales observed Acevedo and
Stevenson working on a column on open scaffolding above 6
feet, with neither man wearing his safety harness. Morales
asked Acevedo and Stevenson whether they attended the meet-
ing where McNett reminded workers to tie off above six feet.
Acevedo replied dismissively, saying that he hadn’t been tied
off when working on the outside part of the building. Morales
responded that those circumstances were different, since
Acevedo and other masons had used a different type of scaffold
and had a wall in front of them. Acevedo then brushed off
Morales’ concern for the second time, saying that he wasn’t
going to fall. Morales made Acevedo and Stevenson climb
down from the scaffold and retrieve their harnesses. 39
Morales proceeded to speak with McNett, who was doing
some paperwork, at about 8 a.m. on May 16. Morales reported
that Acevedo and Stevenson were on a scaffold and not tied off,
and that he had directed them to retrieve their harnesses. At
approximately 8:30 a.m., McNett returned to the second floor
through a stairwell that opened most closely to the column
where Acevedo and Stevenson were working. He immediately
admonished them for improperly tying the harness and warned
that they were at risk for falling. McNett asked Acevedo and
Stevenson if they had received safety harness orientation. Both
denied receiving any training on how to tie off while working
on a scaffold. McNett unhooked the strap and retractor from
Acevedo’s harness, then wrapped the strap around the scaffold-
ing. McNett then reattached the retractor to the strap and to

38 Under the Company’s fall protection rule, outside work required
protection only at the open ends of the scaffolds; otherwise, employees
working at elevation had a wall in front of them and guardrails behind
them. In contrast, any inside work done at elevation needed fall protec-
tion, because the individual scaffolds were not as elaborate, and be-
cause the 7-foot width of the scaffolds, set against to the narrower
columns under construction, left the sides and ends open.
39 Except for Acevedo’s selective memory in failing to recall whether fall protection was discussed in
that meeting, there is no dispute that McNett and Morales issued that safety directive on May 16. (Tr. 137–41,
153, 158–160, 396–397, 418–422, 620–623, 670–671, 700, 762–765; R. Exh. 14.)
Acevedo’s back, and repeated the procedure for Stevenson.
Acevedo told McNett that it was against OSHA regulations to
make employees from tying off on scaffolding. McNett did not
reply and walked away.40
McNett called Feliz and recounted what had happened. In
particular, he related that he had two employees who were
claiming that the Company had not trained them on how to tie
off and use harnesses. When Feliz asked where the two em-
ployees had come from, McNett said that they had come from
Westshore. Feliz answered that everyone on that job had been
trained. He told McNett that he would have Ramirez investi-
gate, and if the employees in fact had been trained, they would
be dismissed. Feliz and Ramirez then spoke by telephone.
Feliz relayed the information from McNett that two masons at
UT, formerly at Westshore, violated the Company’s fall protec-
tion rule. He directed Ramirez to visit the UT jobsite and as-
certain whether the two masons had been trained properly on
fall protection.41
Ramirez returned to UT jobsite around 12 p.m., with the
Westshore orientation booklet. He showed McNett the booklet
and the signatures in it. McNett said that he and another super-
visor had observed Acevedo and Stevenson working at eleva-
tion above 6 feet and not using fall protection correctly, and
that both had claimed no one had ever trained them on fall pro-
tection. Ramirez walked over to where Acevedo and Steven-
son, who had descended from their scaffold, had been working.
He observed that the scaffold had places where a fall risk exist-
ed, and that the scaffold was appropriate to tie off to, with a
place on the frame for that purpose. Holding the orientation
booklet in his hand, Ramirez asked the employees whether they
remembered being trained on fall protection at Westshore, as
part of an hour and fifteen minute orientation. Both Acevedo
and Stevenson confessed that they did. Ramirez showed them
their signatures on the attendance page.42
Ramirez contacted Feliz. He confirmed the fall protection
violation; related that he had trained the two masons personally;
conveyed that he had documented their training; and described
how the masons had conceded their attendance. Feliz, who
wanted to review the training documentation himself before
making a final decision, advised Ramirez to fill out Employee
Warning Notices for the employees, which Ramirez did. The
Employee Warning Notices provided to Acevedo and Steven-
son each stated that “the employee was not tie-off (sic) proper-
ly.” They also indicated that they were a level “1” offense of a
scale ranging from “l” to “2” to “3” to '”FINAL.””43

40 I credit testimony by McNett and Morales that Acevedo and Ste-
venson were tied off incorrectly. However, McNett’s generalized testi-
mony failed to credibly refute Acevedo’s contention that other masons
were tied up in different ways, with some tied to the scaffold and others
to the cross-bracers. (Tr. 139–140, 158–160, 396–397, 422–425, 475–
478, 624–630, 670–671, 764–768, 675–676.)
41 It is undisputed that Feliz and Ramirez quickly established that
Acevedo and Stevenson received fall protection training on the
Westshore job. (Tr. 89–90, 111, 534–535, 567,630–631, 700–701.)
42 Neither Acevedo nor Stevenson disputed this encounter with
Ramirez. (Tr. 41–42, 76, 90–91, 111, 535–540, 567–570, 631–632,
701; GC Exh. 5–6.)
43 GC Exh. 5–6.
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 15
At lunchtime, McNett and Ramirez, who had come to the
site a little after 12 p.m., found Acevedo on his break. McNett
accused Acevedo of lying to him about getting safety orienta-
tion. Acevedo conceded receiving a safety orientation during
the Westshore job, but not to tie off behind him, and that “by
law, nobody’s supposed to tie it up to the scaffold.” Acevedo
continued, saying that no one had been using a harness, even
outside, working at the height they had been, risking their lives,
and now he was being required to wear it working at only 7 feet
high. McNett told Acevedo that they were not supposed to use
the harness when working facing towards the wall. Stevenson
came by during this conversation and McNett told him to come
over. McNett and Ramirez told Acevedo and Stevenson to sign
the warnings Ramirez had filled out, because they were being
sent home for the day for tying off incorrectly. Referencing the
“cinnamon bun” method McNett had done with their straps,
Stevenson asked, “Why weren’t we told that before we got up
there? You just said tie off.” McNett replied, “It’s not in my
hands. I was told to send you home, and you’re in review.”
Both men signed the papers, which were their first and only
warnings for fall protection violations—and, in fact, their first
discipline of any kind while working for the Company—and
went home.44
I. Feliz Discharges Acevedo and Stevenson after Discussions
with Senior Management
Aware that Acevedo was a union member and the represen-
tation election was coming up, Feliz discussed the discipline of
Acevedo and Stevenson with the Company’s owners, Ron and
Richard Karp. 45 The decision was then made to discharge
Acevedo and Stevenson. Feliz communicated that decision to
McNett. Feliz then filled out Reason for Leaving Forms for
indicating that Acevedo and Stevenson were terminated.46
Acevedo arrived at work the following day, May 17 and was
informed by McNett that he was being let go. In response to
Acevedo’s request for an explanation, McNett said he was be-
ing fired for violating safety regulations. Once again, Acevedo
responded that it is an OSHA violation to tie off to scaffolding.
McNett responded by calling him a liar and telling him that he
was fired. Acevedo asked McNett if he was firing him because
he is a union guy. McNett responded "this is America; fight for
your rights.”47

44 I credit the testimony of Acevedo and Stevenson that other masons
were also working at elevated heights over 6 feet without being tied off.
The conclusory and overly generalized testimony of McNett and Mo-
rales to the contrary did little to counter their assertions. (GC Exh. 5–6;
Tr. 89, 139–142, 424–429, 539–540, 632–633.)
45 I do not credit Feliz’ testimony that he did not mention the names
of the employees involved. Unlike other employees disciplined for fall
protection violations, this communication with the owners before tak-
ing disciplinary action was unprecedented. It was precipitated, in Feliz’
words, because Acevedo was a member of the Union and Feliz, who
had made antiunion remarks in the past, knew that the election was
looming. (Tr. 89–94, 119, 541, 633–635, 874, 879–881.)
46 GC Exh. 9–10.
47 I base this finding on the credible testimony of Acevedo. McNett
may have been a former union member, but as a supervisor he ex-
pressed antiunion sentiment here and on several other occasions. (Tr.
428–431, 477–479, 634–635).
Acevedo then returned to the parking lot, called Stevenson
and told him that both of them were fired. Acevedo then called
Feliz, who replied “that’s the way it is, there’s nothing that we
can do. I’m sorry, that’s what it is.” Stevenson still proceeded
to go to the jobsite and spoke with McNett, who told him that
the decision “came from above, it’s not me.”48
Both employees called Feliz the next day. Acevedo asked
that his termination be changed to a layoff, so that he might
receive unemployment. Feliz declined, but Acevedo filed for
unemployment compensation benefits anyway. The Company
opposed Acevedo’s claim with the Connecticut Department of
Labor, but it was granted. Stevenson also called Feliz. Con-
trite, he told Feliz that “we were wrong,” adding that he hoped
for another chance on a future job.49
J. Other Fall Protection Violations on Respondent’s Jobsites
In the months preceding the discharges of Acevedo and Ste-
venson, four employees were disciplined for safety violations
involving fall protection. Two of them, Brandon Carollo and
Timothy Golphin, were discharged on February 10, 2016.
Richard Haser was suspended on February 19, 2016. Timothy
Bryant was suspended on March 8, 2016. In addition, Jaswin
Leonardo was discharged on May 26, 2016, 10 days after
Acevedo and Stevenson were discharged.
Carollo, a laborer on the Bethune job, was discharged after
being observed working without a safety harness and hurling an
expletive at McNett when the latter spoke to him about the
violation. The incident was Carollo’s third fall protection vio-
lation. Previously, he received a warning and 2-day suspension
on June 24, 2015, after being observed working at an elevated
level on a scaffold without fall protection equipment in place.
On August 10, 2015, Carollo was again warned and suspended
for 3 days after he was observed by the general contractor’s
representative walking on scaffolding without being tied by a
harness.50
Golphin, a scaffold builder/laborer on the Bethune job, was
discharged on February 10, 2016, because he was talking on his
cellular phone while working and was not tied off at an eleva-
tion of 38 or 40 feet.51
Haser was observed by the general contractor’s representa-
tive to be working above 6 feet on the Bethune jobsite while
not tied off. It was his second offense. He was sent home and
was required to complete the general contractor’s safety orien-
tation before being permitted to return to the job.52
Bryant, a mason who attended Westshore training along with
Acevedo and Stevenson was observed by Ramirez not wearing

48 Feliz did not refute Acevedo’s credible testimony regarding their
conversation after the latter was fired. (Tr. 94, 430.) Similarly, McNett
did not refute Stevenson’s credible testimony that the former admitted
that the order to suspend was not in his hands and the order to fire him
“came from above, it’s not me.” (Tr. 140–141, 633–636.)
49 R. Exh. 20–21; Tr. 94, 478.
50 Notwithstanding the confusion as to whether Dutton or McNett
terminated Carollo, the evidence indicates that Carollo’s termination
was predicated on a third fall protection violation and insubordination. (
GC Exh. 8(a)-(e); Tr. 542–543, 571–572, 638–640, 899.)
51 R. Exh. 33.
52 GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
a harness or otherwise connected to his anchor point as he lay
block 18 feet off the ground. Ramirez sent Bryant home, but he
returned to work 2 days later. Bryant was subsequently termi-
nated for insubordination a little over a month later.53
Leonardo was discharged from the Midrise project after fail-
ing to use fall protection at an elevation of about 10 feet and
improperly dismounting the scaffold by stepping on the cross-
braces instead of using a ladder.54
K. The Representation Election
The election was conducted by mail, with approximately 110
eligible voters. The Board mailed the ballots on May 25, 2016,
and tallied them on June 9, 2016. The ballot tally showed 16
votes cast for the Union, 16 votes cast against the Union, 2
votes voided, and 22 challenged ballots. The challenged ballots
were sufficient in number to affect the election results.
By Stipulation, approved on November 17, 2016, the Com-
pany and Union resolved 8 of the 22 determinative challenged
ballots. The challenged ballots cast by David Almond, Brian
Canfield, Marc Carney, Robert Dutton, Coy Hale, Brett
McNett, Mario Morales, and Todd Wolosz were disqualified
and those individuals were deemed ineligible to vote. As a
result, the Tally of Ballots was revised on November 17, 2016,
showing 14 challenged ballots. Five of the challenged ballots
are from employees alleged by the Company to have been ter-
minated for cause: Acevedo, Stevenson, Raymond Pearson,
Robert Harvey and John Smith. The remaining 9 employees
were alleged by the Company to have quit voluntarily during
the Bethune project: David Wrench, Robert Baker, Jacob Bar-
low, Jeremy Clark, Mark France, Forest Greenlee, Dustin
Hickey, Robert Pietsch, and George Reed.
On June 16, 2015, the Union timely filed 10 Objections to
conduct affecting the results of the election. The objections
substantially mirror the unfair labor practice charges in the
complaint. On December 13, 2016, after a preliminary investi-
gation of the Challenged Ballots and Objections, the Regional
Director’s Report on Objections and Challenged Ballots found
that the 14 challenged ballots and Objections 1 through 6, 8,
and 9 raised substantial and material issues of fact, referred and
consolidated them for a hearing in conjunction with the above-
captioned unfair labor practice charges.
Legal Analysis
I. THE 8(A)(1) ALLEGATIONS
A. Interrogation
The amended complaint and Objection 3 of the petition al-
lege that statutory supervisor Morales, on a date in April or
early May 2016, interrogated employees about their union ac-
tivities at the Westshore jobsite. Morales denied making such
an inquiry, insisting that he actually welcomed Bontempo to the
jobsite in order to distribute union shirts and beverages.
On or about April 18, Morales, witnessed Acevedo at the

53 Although Bryant’s form had the “Dismissal” box marked, Ramirez
admitted that he “made a mistake” and was supposed to check “Sus-
pension.” Box, which is consistent with the disciplinary action taken.
(GC Exh. 2(c), 4(a)-(c); Tr. 433–434, 495, 500, 546–548, 787–789.)
54 R. Exh. 34.
jobsite signing papers while in the company of Bontempo. At
the time, Acevedo was signing insurance documents provided
to him by Bontempo. During that same visit, Morales handed
out union shirts, beverages and union applications. The follow-
ing day, Bontempo asked Acevedo what papers he signed for
Bontempo.
The Board considers the totality of the circumstances in de-
termining whether the questioning of an employee constitutes
an unlawful interrogation. Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board has addi-
tionally determined that in employing the Rossmore House test,
it is appropriate to consider the factors set forth in Bourne v.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964): whether there was a
history of employer hostility or discrimination; the nature of the
information sought (whether the interrogator sought infor-
mation to base taking action against individual employees); the
position of the questioner in the company hierarchy; the place
and method of interrogation, and; the truthfulness of the reply.
The Bourne factors should not be mechanically applied or used
as a prerequisite to a finding of coercive questioning, but rather
used as a starting point for assessing the totality of the circum-
stances. Westwood Health Care Center, 330 NLRB 935, 939
(2000).
The Company disseminated antiunion propaganda during the
preelection period. However, prior to the filing of the represen-
tation petition, there was no history of hostility to the Union.
To the contrary, the Company frequently requested referrals
from the Union pursuant to an 8(f) relationship. The Company
did express its intention not to renew that agreement when it
expired on April 30. However, that decision was based on the
Company’s disagreement as to whether it was bound by an
industry wide agreement and not by union animus. Moreover,
the conversation took place prior to the Union’s filing of its
representation petition on April 29.
With respect to the nature of the information sought, there
was no reasonable indication that Morales sought information
upon which to take action against Acevedo. From Acevedo’s
perspective, Morales was asking about a transaction in which
Acevedo signed insurance documents. Morales, Acevedo’s
foreman, merely approached in Acevedo in the parking lot prior
to the start of work and Acevedo was not intimidated in the
least by the inquiry, walking away without even answering
Morales.
Under these circumstances, Morales’s interrogation of
Acevedo on or about April 18 was not unlawfully coercive.
Accordingly, that complaint allegation is dismissed and Objec-
tion 3 of the petition is dismissed.
B. Threats
The complaint, as amended, and Objection 8 of the petition
allege that during the preelection period in May 2016, Statutory
Supervisor Feliz threatened a group of employees at the
Westshore jobsite with reduced wages if they voted for the
Union.
Feliz, an admitted statutory supervisor, told a group of seven
or eight Spanish-speaking masons that they should vote against
the Union, because the Union was taking their money. Feliz
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 17
went on to say that if they “vote yes for union,” their rate would
go down to approximately $18 per hour. Luna, who testified at
the behest of his employer, admitted that Feliz told the masons
“the reasons why the Company did not want us to be with
them....” Feliz’ statement to employees that their wage rates
would be reduced to $18 and change if the employees chose to
be represented by the Union violated Section 8(a)(1) of the Act,
as alleged in paragraph 6(a) of the complaint.
The Board has enumerated factors to consider in determining
the severity of threats during the critical period: (1) the nature
of the threat itself; (2) whether the threat encompassed the en-
tire bargaining unit; (3) whether reports of the threat were
widely disseminated within the unit; (4) whether the person
making the threat was capable of carrying it out, and whether it
is likely that the employees acted in fear of his capability of
carrying out the threat; and (5) whether the threat was rejuve-
nated" at or near the time of the election. Westwood Horizons
Hotel, 270 NLRB 802 (1984); see also PPG Industries, 350
NLRB 225 (2007). Under this standard, the threat to decrease
mason wages if they voted in favor of the Union is quite severe.
The threat strikes to the heart of a mason's livelihood and
would affect the entire bargaining unit, and it is bolstered by
campaign literature directly linking an increase in mason
paychecks with the Company no longer honoring the 8(f)
agreement with the Union. With a tie vote, and one of the chal-
lenged votes in attendance at this meeting where up to eight
other employees were present, wide dissemination of the threat
is not necessary for it to have an effect on the election.
The same type of threat was made by Statutory Supervisor
McNett during a mandatory safety meeting at the Westshore
jobsite on May 16. During that meeting, McNett, who talked
regularly about how the Union was tricking employees into
signing up and was stealing their money, told employees that a
union will probably not be good for wages.
McNett’s comment during the critical preelection period
was coercive. It sent a clear message to employees that the
Company would reduce wages if the employees selected the
Union, and the statement therefore violated Section 8(a)(1) of
the Act.
C. Restrictions on Solicitation
Objection 9 by the Union alleged that the Company discrim-
inatorily applied a solicitation policy to preclude Bontempo and
other union officials from communicating at the jobsites with
masons. The Company denies the allegation, insisting that
union representatives were permitted to solicit employees at its
jobsites prior to and after work time, and during lunch and oth-
er break periods.
Prior to the filing of the representation petition on April 29,
2016, company supervisors and Bontempo agreed that the latter
would be permitted to solicit employees at jobsites prior to and
after work, and during lunch and other breaks. As the cam-
paign heated up, Bontempo strayed from his agreement by
soliciting employees during worktime. On several occasions,
company supervisors caught Bontempo soliciting employees
during worktime. Each time he was told to stop and to resume
solicitation during break and nonwork time. While there was
testimony that the Company permitted employees to access
food trucks in the parking lot, there is no indication that they
permitted food vendors to access the jobsite during worktime.
Moreover, the parking lot is the same location where Bontempo
was permitted to wait for employees until they went to break
time or got off from work.
Accordingly, the Company’s enforcement of its longstanding
solicitation policy during work time was proper under the cir-
cumstances and Objection 9 is overruled.
II. THE 8(A)(3) ALLEGATIONS
Paragraph 7 of the complaint and Objections 1 and 2 of the
petition allege that the Company enforced its fall protection
safety rules against Acevedo and Stevenson more strictly than
normal by suspending them on May 16, 2016 and discharging
them the following day because of Acevedo’s strong support
for the Union. The Company contends that enforcement of
these rules was consistent with its enforcement of the rule and
discipline of other employees.
Under Section 8(a)(3) of the Act, an employer may not dis-
criminate with regard to hire, tenure, or any term or condition
of employment in order to encourage or discourage member-
ship in a labor organization. To determine whether adverse
employment action was effected for prohibited reasons, the
Board applies the analysis set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Under Wright Line, to establish unlawful
discrimination on the basis of union activity, the General Coun-
sel must make an initial showing that antiunion animus was a
substantial or motivating factor for the employer's action by
demonstrating that: (1) the employee engaged in union activity;
(2) the employer had knowledge of that union activity; and (3)
the employer harbored antiunion animus. Amglo Kemlite La-
boratories, Inc., 360 NLRB 319, 325 (2014), enfd. 833 F.3d
824 (7th Cir. 2016).7 Proof of animus and discriminatory moti-
vation may be based on direct evidence or inferred from cir-
cumstantial evidence. If the General Counsel makes his initial
showing, the burden shifts to the employer to show that it
would have taken the same action even in the absence of the
protected activity. Id.
The evidence established that Company foreman became lax
in their enforcement of the Company’s fall protection policies,
which were also required by OSHA regulations, while work
was being performed outside of the UT structures. However,
once the elevated masonry work went inside, McNett reiterated
the Company’s written “zero” tolerance policy with respect to
fall protection.
The Company’s stricter enforcement of its fall protection
policy cannot be considered adverse action since it was man-
dated by law. Moreover, I am not convinced that the Company
resumed enforcement of the policy solely because of the im-
pending representation election or for the purpose of trapping
Acevedo and Stevenson in a violation. Accordingly, that alle-
gation and Objection 2 are dismissed.
The Company’s enforcement of the fall protection policy
against Acevedo and Stevenson, however, produces a different
result. They initially experienced adverse action by being sus-
pended. Given the timing just before the election, the action
became even more suspicious when Feliz took the unusual step
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
of discussing the incident with the Karps. As a result, Acevedo
and Stevenson were discharged 23 days prior to the election for
violating the fall protection policy. The Company knew that
Acevedo was an active Union supporter and that he stood up to
Feliz when the latter threatened lower wages. Stevenson was
not an active Union supporter. However, I agree with the Gen-
eral Counsel’s assertion that Stevenson, Acevedo’s partner on
May 16, was collateral damage, i.e., working alongside the
wrong person at the wrong time.
In addition to the Company’s knowledge of Acevedo’s union
activity, it harbored animus toward that activity. The Compa-
ny’s vigorous antiunion campaign demonstrates that it harbored
animus toward the Union. Animus is further established by the
Company’s threats to reduce employee wage rates if they se-
lected the Union as their collective bargaining representative.
The Company’s animus is most notably demonstrated by its
disparate treatment of Acevedo and Stevenson following the
filing of the Union’s representation petition, by strictly enforc-
ing its “zero tolerance” policy against them, while ignoring
others who were not in compliance.
Even in the absence of union activity, the evidence revealed
that prior to or after May 16 no other employees were dis-
charged for failing to tie off “properly” as a first offense. A
glaring example of such disparate treatment was when Bryant,
also safety trained a month earlier, was observed working with-
out a harness, but only sent home for the day.
Prior to May 16, the Company’s safety policy was not zero
tolerance, but rather, a tolerance of up to one or two fall protec-
tion violations. Carollo was charged with two fall protection
violations, but was not discharged until his third offense. The
decision to discharge Carollo following a third safety violation
is consistent with the Company’s safety policy as reported to
the Florida unemployment compensation agency. In that regard,
the Company stated that its policy was to issue warnings to
employees for their first two safety violations and only dis-
charge after the third safety violation. Similarly, after a second
fall protection violation, Haser was merely sent home until he
attended safety orientation again.
The discharges of Golphin and Leonardo were not compara-
ble to those of Acevedo and Stevenson. Also discharged based
on one incident, Golphin and Leonardo were each guilty of
severe compound violations—failing to anchor their harnesses
while simultaneously engaging in another safety violation.
The evidence of disparate treatment, combined with the tim-
ing of the suspensions and discharges shortly after Acevedo
challenged Feliz about the merits of union representation dur-
ing the peak of the pre-election period, provides a causal con-
nection between the Company’s antiunion animus and the deci-
sion to selectively enforce its fall protection policy and dis-
charge Acevedo and Stevenson. Under the circumstances, it is
evident that Acevedo and his partner at the time, Stevenson,
would not have been suspended and then discharged in the
absence of Acevedo’s protected conduct.
Accordingly, the suspension and discharges of Acevedo and
Stevenson, occurring during the critical pre-election period as
the result of the Company’s discriminatory enforcement of its
fall protection policy, were a pretext. The Company’s motiva-
tion in terminating Acevedo and, by association, Stevenson, in
retaliation for Acevedo’s support for the union was retaliatory
and calculated to prevent him from voting in the representation
election and restrain others from voting for the Union.
In determining whether to set aside election results the Board
considers a number of factors, such as (1) the number of inci-
dents of misconduct; (2) the severity of incidents and whether
they were likely to cause fear among unit employees; (3) the
number of employees in the unit subject to the misconduct; (4)
the proximity of the misconduct to the election; (5) the degree
of persistence of the misconduct in the minds of unit employ-
ees; (6) the extent of dissemination of the misconduct; (7) the
closeness of the vote; and 8) the degree to which the miscon-
duct can be attributed to the party. See Cedar-Sinai Medical
Center, 342 NLRB 596, 597 (2004).
When considered in conjunction with the Company’s coer-
cive statements threatening lower wages if employees voted for
the Union, the discharge of Acevedo, an open supporter of the
Union, clearly had an effect on the outcome of the election. It is
well settled that conduct in violation of Section 8(a)(1) that
occurs during the critical period prior to an election is “a fortio-
ri, conduct which interferes with the exercise of a free and un-
trammeled choice in an election.” The Board will thus set aside
an election unless the 8(a)(1) violation is so minimal or isolated
that it is virtually impossible to conclude that the misconduct
could have affected the election results. E.g., Iris U.S.A., Inc.,
336 NLRB 1013 (2001).
Under the circumstances, the Company’s actions violated
Section 8(a)(3) and (1) of the Act as alleged in paragraph 7 of
the amended complaint and constituted objectionable conduct
as alleged at Objection 2. Objection 1 is overruled.
In the event that the Union does not prevail after the addi-
tional 10 challenged votes are counted, the Section 8(a)(3) and
(1) violation, which was also alleged as election Objection 2,
warrants setting aside the election.
III. THE CHALLENGED BALLOTS
The Company challenged the ballots cast by Luis Acevedo,
Robert Harvey, Raymond Pearson, John Smith, and Walter
Stevenson, on the basis that they were discharged for cause.
The Company also challenged the ballots cast by Robert Baker,
Jacob Barlow, Jeremy Clark, Mark France, Forest Greenlee,
Dustin Hickey, Robert Pietsch, George Reed, and David
Wrench on the basis that they quit their jobs.
It is well established that the burden of proving that an em-
ployee is ineligible to vote rests with the party asserting the
challenge. Sweetener Supply Corp., 349 NLRB 1122 (2007).
The Company’s ability to meet such a challenge with respect to
Acevedo and Stevenson is precluded by the law of the case, i.e.,
they were unlawfully terminated after the Company discrimina-
torily enforced its fall protection policy against them because
Acevedo engaged in protected conduct during the pre-election
period. Accordingly, Acevedo and Stevenson were eligible to
vote and their votes should be counted.
With respect to the following employees, there was insuffi-
cient credible evidence to satisfy the Company’s burden with
respect to their challenged ballots, thus, they were laid off by
the Company with a reasonable expectation of rehire and their
votes should be counted: John Smith, David Wrench, Jacob
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 19
Barlow, Dustin Hickey, Forest Greenlee, Jeremy Clark, George
Reed and Raymond Pearson. The RFL forms produced by the
Company purporting to show that each voluntarily quit were
simply not reliable. In addition to other factors previously men-
tioned, these documents were not provided to the employees
and they did not have an opportunity to dispute the accuracy of
the representations therein. Under the circumstances, I gave
these documents little weight in determining whether an em-
ployee quit or was laid off. See NLRB v. Cal-Maine Farm, Inc.,
998 F. 2d 1336, 1343(5th Cir. 1993) (self-serving business
records received in evidence but trier-of-fact gave disputed
contents little weight).
The little weight that I gave such documents did enable the
Company, however, to meet its burden in establishing that the
remaining employees voluntarily quit or were discharged for
cause prior to the election and their votes should not be count-
ed: Robert Harvey, Robert Baker, Mark France, and Robert
Pietsch.
IV. THE EXCELSIOR NAMES
The Union contends at Objections 4 and 5 that the Company
submitted an inaccurate or incomplete Excelsior List and im-
properly included additional lists to the list after it was pro-
duced to the Union.
Employers are required to provide complete and accurate in-
formation as required by Excelsior Underwear, Inc., 156 NLRB
1236 (1966). Pursuant to Section 102.62(d) the Board Rules
and Regulations, an employer must provide a list of the full
names, work locations, shifts, job classifications, and contact
information (including home addresses, available personal
email addresses, and available home and personal cellular tele-
phone numbers) of all eligible voters. Moreover, an employer's
failure to provide the list in proper format shall be grounds for
setting aside the election upon timely objection.
Although the Company provided a voter list within the re-
quired two business days of the Stipulated Election Agreement,
the list undisputedly did not include seven employees—
Raymond Pearson, Robert Baker, Mark France, Robert Harvey,
Robert Pietsch, George Reed, and David Wrench—who worked
a sufficient number of hours for the Company in order to satisfy
the Steiny/Daniel eligibility formula agreed to by the parties.
However, France, Baker, Harvey, and Pietsch voluntarily re-
signed from Company projects prior to the election and, thus,
were rendered ineligible to vote. The remaining three employ-
ees—Pearson, Reed, and Wrench were laid off and clearly sat-
isfy the Steiny/Daniel eligibility formula. There was undisputed
testimony that employees typically work an eight hour work
day, and Company payroll records corroborate this testimony as
they clearly identify hours as regular or overtime for each em-
ployee in question.
By intentionally omitting three employees required to be in-
cluded on the voter eligibility list in some capacity in direct
violation of Rules and Regulations of the National Labor Rela-
tions Board §102.62(d), the Company committed objectionable
conduct affecting the results of the election. See Fountainview
Care Center, 323 NLRB 990 (1997) (election directed where
voter eligibility list omitted only 5 percent of the names and
there was evidence of intentional conduct on the part of the
Employer). In this case, where there was tied vote, even the
omission of one eligible voter ultimately affected the results of
the election.
The Union refers to the Company’s untimely attempts to
frustrate the intent of the law by seeking to add and remove
employees from the list after the initial list was field. The Re-
gional Office, however, conducted the election based on the
only timely Excelsior list and the Company’s efforts to alter the
list were unsuccessful.
In situations where the results of the vote are a tie and there
are fourteen challenges, three of whom were omitted from the
voter eligibility list, the Company’s conduct certainly has an
effect on the results of the election. See Woodman's Food Mar-
kets, Inc., 332 NLRB 503 (2000) (Board gives substantial
weight to the number of eligible voters omitted from the eligi-
bility list when they are sufficient in number to affect the re-
sults of the election). Special Citizens Futures Unlimited, Inc.,
331 NLRB 160 (2000); Thrifty Auto Parts, Inc., 295 NLRB I1
18 (1989); Gamble Robinson Co., 180 NLRB 532 (1970). By
its actions, the Company failed to substantially comply with the
Board’s Excelsior requirements, the election should be over-
turned and a new one scheduled. Shore Health Care Ctr., 323
NLRB 172, 323 NLRB 990 (1997).
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening or implying that employees’ wages will go
down if they select the Union, the Company violated Section
8(a)(1) of the Act.
4. By suspending Luis Acevedo and Walter Stevenson on
May 16, 2016, and discharging them on May 17, 2016, because
Luis Acevedo supported the Union, the Company has engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
5. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The challenged votes of Luis Acevedo and Walter Ste-
venson, unlawfully discharged, should be counted. In addition,
the challenged votes of the following laid-off employees should
be counted: John Smith, David Wrench, Jacob Barlow, Dustin
Hickey, Forest Greenlee, Jeremy Clark, George Reed, and
Raymond Pearson. Robert Harvey, Robert Baker, Mark France,
and Robert Pietsch voluntarily resigned from the Company
during the Steiny-Daniel period and their votes should not be
counted.
7. The Company’s conduct during the critical pre-election
period, as alleged at Objections 1, 4, 5, and 8, was objectiona-
ble and tended to interfere with the election. Objections 2, 3,
and 9 are overruled.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
On these findings of fact, conclusions of law and the record
as a whole, I shall recommend that the challenged votes of Luis
Acevedo, Walter Stevenson, John Smith, David Wrench, Jacob
Barlow, Dustin Hickey, Forest Greenlee, Jeremy Clark, George
Reed and Raymond Pearson be counted; (2) that the challenges
to votes cast by Robert Harvey, Robert Baker, Mark France,
and Robert Pietsch be sustained; and that Objections 2, 4, 5,
and 8 be sustained, while Objections 1, 3, and 9 should be over-
ruled.
Based on the unfair labor practices, as well as the closeness
of the results of the election, I shall recommend that a new
election be directed if the Union does not prevail after the votes
of the aforementioned 10 former employees are counted. See
Kingspan Benchmark, 359 NLRB 248 (2012) (election set aside
where the election results were close and the employer granted
an employee a wage increase, implemented a shift differential
and interrogated an employee).
Based on the foregoing, I issue the following recommended55
ORDER AND RECOMMENDATIONS
The Respondent, Advanced Masonry Associates , LLC
d/b/a Advanced Masonry Systems, of Sarasota, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening or implying that employees’ wages will go
down if they select the Union as their collective bargaining
representative.
(b) Discharging or otherwise discriminating against its em-
ployees because they engaged in union or other protected con-
certed activity or to discourage them from voting in a represen-
tation election.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) The Respondent, having discriminatorily suspended and
discharged Luis Acevedo and Walter Stevenson, must offer
them full reinstatement as masons on the next available project
and make them whole for any loss of earnings and other bene-
fits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
(b) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(c) The Respondent shall file a report with the Social Securi-
ty Administration allocating backpay to the appropriate calen-
dar quarters. Respondent shall also compensate the discrimi-

55 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
natees for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer
than 1 year, Latino Express, Inc., 359 NLRB 518 (2012).
(d) Within 14 days after service by the Region, post copies
of the attached notice marked Appendix56 in both English and
Spanish at its all of its active job sites and mail said notices, at
its own expense, to all employees of the attached notice, at its
own expense, to all bricklayers and masons employed who
were employed by the Respondent at its Florida jobsites at the
University of Tampa in Tampa, Florida Bethune-Cookman
University in Daytona Beach, Westshore Yacht Club in Tampa,
the Hermitage in St. Petersburg, and the Holiday Inn Express in
St. Petersburg at any time from the onset of the unfair labor
practices found in this case until the completion of these em-
ployees’ work at that jobsite. The notice shall be mailed to the
last known address of each of the employees after being signed
by the Respondent’s authorized representative.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the amended complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.
IT IS RECOMMENDED that (1) the challenged votes during the
June 9, 2016 labor representation election of Luis Acevedo,
Walter Stevenson, John Smith, David Wrench, Jacob Barlow,
Dustin Hickey, Forest Greenlee, Jeremy Clark, George Reed,
and Raymond Pearson be counted; (2) the challenges to votes
cast by Robert Harvey, Robert Baker, Mark France, and Robert
Pietsch be sustained; (3) Objections 1, 4, 5, and 8 be sustained;
and (4) Objections 2, 3, and 9 be overruled.57
Dated, Washington, D.C. May 10, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

56 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
57 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this Report may be filed with the Board in
Washington, DC within 14 days from the date of issuance of this Re-
port and recommendations. Exceptions must be received by the Board
in Washington DC by May 24, 2017.
ADVANCED MASONRY ASSOC., LLC D/B/A ADVANCED MASONRY SYSTEMS 21
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
any of you s because you engage in union or other protected
concerted activity in order to discourage you from voting in a
representation election.
WE WILL NOT threaten or imply that your wages will go down
if you select the Union as your collective bargaining representa-
tive.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Luis Acevedo and Walter Stevenson rein-
statement as masons on our next available project.
WE WILL make Luis Acevedo and Walter Stevenson whole
for any loss of earnings and other benefits resulting from their
unlawful discharges on May 17, 2016, less any net interim
earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Luis Acevedo and Walter Stevenson
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Luis
Acevedo and Walter Stevenson, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been
done and that the discharges will not be used against them in
any way.
ADVANCED MASONRY ASSOC. LLC D/B/A ADVANCED
MASONRY SYSTEMS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-176715 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.