A&L Industrial Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 4, 2007

16-CA-025391 (N.L.R.B. Sep. 4, 2007)

JD(ATL)–24–07
Deer Park, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
A&L INDUSTRIAL SERVICES, INC.
and Case 16-CA-25391
FRANCISCO HURTADO, an Individual
and Case 16-CA-25392
CARLOS MOLINA, an Individual
and Case 16-CA-25420
LAZARO SAUCEDA, an Individual
and Case 16-CA-25507
ELVIN VATRES1, an Individual
Dean Owens, Esq., for the General Counsel.
David E. Bensey, Esq., for the Respondent.
BENCH DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. This case was tried in
Houston, Texas, on August 13-14, 2007. The charges were filed and amended by the individual
Charging Parties on various dates between January 18, 2007 and March 26, 2007.2 Based
upon these charges, a consolidated complaint issued on May 29, which was amended on June
8, alleging that A&L Industrial Services, Inc., the Respondent, violated Section 8(a)(1) of the Act
by discharging the Charging Parties on January13 because they had engaged in protected
concerted activities. On June 14, Respondent filed its answer to the complaint, denying the
unfair labor practice allegations and disputing the employee status of Charging Party Vatres. At
the hearing, General Counsel amended the complaint to reflect the alternative spelling of
Charging Party Vatres’ surname and to seek, as a remedy for any unfair labor practices found,
that a copy of the Notice to Employees be mailed to the employees.
After hearing the testimony of the witnesses and considering the arguments made by
counsel at the close of the hearing, I rendered a bench decision in accordance with Section
102.35 (a)(10) of the Board’s Rules and Regulations. For the reasons stated by me on the
record, I found that the four individual charging parties engaged in concerted activities with other
employees of the Respondent on January 13 and that the Respondent discharged the four

1 The parties stipulated at the hearing that Vatres was also known as Batres.
2 All dates are in 2007 unless otherwise indicated.
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employees the same day because of their participation in that activity. I concluded that the
Respondent violated Section 8(a)(1) of the Act, as alleged in the complaint, by discharging the
four Charging Parties.
I hereby certify the accuracy of the portion of the transcript, pages 234 through 257,
containing my bench decision. A copy of that portion of the transcript is attached to this decision
as “Appendix A.”
Conclusions of Law
1. Francisco Hurtado, Carlos Molina, Lazaro Sauceda, Elvin Vatres, a/k/a/ Batres, and
other employees of the Respondent engaged in concerted activities protected by Section 7 of
the Act when they staged a brief work stoppage on January 13, 2007 to demand a wage
increase.
2. By discharging Hurtado, Molina, Sauceda and Vatres on January 13, 2007 because of
their participation in protected concerted activity, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent having unlawfully discharged the Charging
Parties, it must offer them reinstatement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). As stated at the hearing, I shall recommend that any questions regarding the duration of
the back pay period and the availability of reinstatement as a remedy, including whether the
Charging Parties would have been terminated when the turnaround at the Shell refinery was
completed or transferred to another job, are to be resolved at the compliance stage of these
proceedings. Also as stated at the hearing, I shall recommend that the Respondent mail a copy
of the attached Notice to all employees who were on the payroll for the Shell turnaround on
January 13 because that project has ended and the employees may have dispersed to other
projects or employers. Finally, because it appears that a number of the Respondent’s
employees speak Spanish as their primary language, I shall recommend that the Notice be
printed in English and Spanish.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent, A&L Industrial Services, Inc., LaPorte, Texas, its officers, agents,

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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successors, and assigns, shall
1. Cease and desist from
(a) Discharging, or otherwise retaliating against, employees for engaging in protected
concerted activities.
(b) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Francisco Hurtado, Carlos
Molina, Lazaro Sauceda and Elvin Vatres, a/k/a Batres full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Hurtado, Molina, Sauceda and Vatres, a/k/a Batres whole for any loss of
earnings and other benefits suffered as a result of their unlawful discharges, in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove 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.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in LaPorte, Texas,
copies of the attached notice marked “Appendix B”4 in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region 16, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
(f) Within 14 days after service by the Region, mail copies of the attached notice marked
“Appendix B” in both English and Spanish, at its own expense, to all employees who were
employed by the Respondent at its Shell project in Deer Park, Texas at any time from the date
of the unfair labor practice found in this case, January 13, 2007, until the completion of these
employees’ work at that jobsite. The notice shall be mailed to the last known address of each of

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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the employees after being signed by the Respondent’s authorized representative.
(g) 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.
Dated, Washington, D.C., September 4, 2007.

____________________
Michael A. Marcionese
Administrative Law Judge
JD(ATL)–24–07
APPENDIX A
234
JUDGE MARCIONESE: Thank you all very much. I appreciate
22 the closing arguments. They were very, you know, well organized
23 and managed to summarize all the evidence fairly succinctly for
24 me. Now, as I indicated, I did consider the issues overnight,
25 and I've also now considered the arguments that I've heard.
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1 I've reviewed my notes of the testimony of the witnesses and
2 considered whatever other evidence there is, although there
3 isn't anything in the way of documentary evidence in this case,
4 which is somewhat unusual to have a case with no documents.
5 So in any event, having considered all of that, I am now
6 prepared to issue a bench decision under Section 102.35(a)(10)
7 of the Board's rules and regulations. Now, under the Board's
8 bench decision procedures, although it is a bench decision, I
9 still am required to include all of the normal provisions that
10 would be found in a written decision, so I will review the
11 statement of the case, jurisdictional issues, et cetera, before
12 turning to the actual unfair labor practice allegations.
13 Now, this case was initiated by the filing of unfair labor
14 practice charges by the four individual Charging Parties,
15 Francisco Hurtado, Carlos Molina, Lazaro Sauceda, and Elvin
16 Vatres or Batres. We have two versions of his name. And those
17 charges were filed and amended at various dates, beginning
18 January 18, 2007, up through March 28 of 2007.
19 Based upon the charges as amended, the General Counsel,
20 through the Regional Director, issued the complaint in this
21 matter, which was dated May 29, 2007, which alleges that the
22 Respondent violated Section 8(a)(1) by terminating the Charging
23 Parties for engaging in protected converted activity, which is
24 specifically described as a work stoppage over a pay raise.
25 The complaint was then amended on June 8 to change the
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1 date of the alleged termination to January 13 of 2007, and was
2 further amended at the hearing before me to correct the various
3 spellings of the name of Mr. Vatres and to seek the special
4 remedy that General Counsel had argued for.
5 The Respondent filed its answer to the complaint on -- I'm
6 not sure what the date was. I don't think I have that here, but
7 in any event, in the answer, the Respondent denied all of the
8 specific unfair labor practices that were alleged, and in
9 response to one of the allegations dealing with jurisdiction and
10 commerce, asserted that Mr. Vatres -- there was no record of his
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11 employment.
12 Now, at the hearing, when we opened the hearing,
13 Respondent did stipulate that having reviewed its records, it
14 was prepared to agree that Mr. Vatres or Batres was, in fact,
15 employed at the time in question and is the same individual.
16 Now, with respect to jurisdiction, the Respondent has
17 admitted the complaint allegations that the Respondent is a
18 Texas corporation with a place of business located in La Porte,
19 Texas, where it has been engaged in the business as a refinery
20 maintenance subcontractor, and that during the past fiscal year,
21 the Respondent, in conducting its business operations, provided
22 services valued in excess of $50,000 to Shell Oil Company, an
23 enterprise directly engaged in interstate commerce, and that
24 based upon these facts, that the Respondent is an employer is
25 engaged in commerce within the meaning of the Sections 2(2), (6)
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1 and (7) of the Act.
2 Now, the evidence in this case shows that at the time in
3 question, in December, January, early part of 2007, Respondent
4 was working under a contract With Shell Oil Company during a
5 turnaround at its Deer Park, Texas, facility, and that employed
6 on that project were the four individual Charging Parties.
7 Now, turning to the unfair labor practice -- and also
8 Respondent has admitted the allegations in the complaint that
9 the project manager, Mr. Jose Chavez, and the superintendent,
10 David Carmona, were, in fact, supervisors and agents of the
11 Respondent at the relevant periods.
12 Now, turning to the unfair labor practice allegations, the
13 first question which is actually not that difficult of one is
14 whether the Charging Parties were engaged in concerted
15 activities protected under the Act, and the testimony of the
16 three Charging Parties who did appear here, Mr. Hurtado, Mr.
17 Molina, Mr. Sauceda, clearly establishes this allegation, and,
18 in fact, Mr. Bensey has acknowledged in his closing argument
19 that the Respondent really doesn't dispute that the employees
20 were engaged in concerted activity.
21 Just to summarize the evidence of the three witnesses,
22 which was fairly consistent between them and which was not
23 contradicted by Mr. Carmona, does indicate that the early part
24 of this year, the employees were unhappy over rumors that they
25 had that employees of other contractors were being given raises
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1 and that they were not to be given raises. There was even some
2 rumors that some employees were promised raises and that the
3 Respondent had not delivered on their promises, and that this
4 dissatisfaction led to a work stoppage which originated in the
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5 hydro processing unit and spread to the sulfur unit where the
6 four Charging Parties worked.
7 And it appears that virtually all of the employees from
8 the sulfur unit did, in fact, stop work on January 13 of 2007,
9 and went over to the hydro unit where the employees there had
10 already stopped work, in order to await Mr. Carmona and Mr.
11 Chavez, so that they could confront them with their questions
12 about a pay raise and demand that they receive a raise as they
13 believed other employees had.
14 And it's also clear from the testimony that after the
15 issue at the hydro unit had been resolved, that the employees,
16 including the four Charging Parties, from the sulfur unit
17 returned to their work area, but rather than returning to work,
18 in fact, assembled in the lunch tent. And I credit the
19 testimony of the discriminatees that they were told to gather
20 there by Mr. Chavez when he told them to go back to the lunch
21 tent so that he could talk to them separately from the hydro
22 unit.
23 And the evidence shows that in the lunch tent, the
24 employees did discuss with Mr. Chavez and Mr. Carmona was
25 present the issues they had regarding the pay raise, as well as
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1 from Mr. Molina's and Mr. Hurtado's testimony, other issues
2 including some concerns about the gloves that they were required
3 to purchase in order to perform work at that site, but that
4 eventually they all did -- were instructed to return to work,
5 and the four Charging Parties, in fact, did head back to work,
6 and Mr. Molina himself testifies that he did, in fact, start
7 work and worked for about 15 minutes before he was called to the
8 office.
9 Now, and although there's some dispute about the length of
10 time, I do not credit the testimony of Mr. Carmona that it
11 lasted beyond at most an hour to an hour and a half. I agree
12 with General Counsel. He did appear at this hearing to be
13 attempting to exaggerate the length of time that the employees
14 stopped work. I note that even Mr. Porterfield from Shell was
15 closer to the work stoppage ending by about 1:30, which
16 considering that the lunch hour ended at 12:30, would be only
17 about an hour's stoppage of work.
18 So it's clear that at least the evidence here does not
19 indicate that this work stoppage would have gone beyond what
20 would be protected. There's no question, no allegation raised,
21 that this was a sit-down strike or an intermittent strike or a
22 partial work stoppage or anything else that would have been
23 unprotected under the Act.
24 Now, the right of employees, unrepresented employees, to
25 engage in this type of activity to secure higher pay is
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1 elemental, and in fact, the Board in California Gas Transport,
2 Incorporated, 347 NLRB Number 118, slip opinion at page 6, in
3 fact described this as protected activity in its most basic
4 form. And as General Counsel says, the seminal case in this
5 area is the 1962 Supreme Court decision in NLRB versus
6 Washington Aluminum Company at 370 U.S. 9 which dealt with a
7 group of unrepresented employees who stopped work because of the
8 working conditions. I think it was a question of it being too
9 cold in the work area.
10 And so certainly here, it is clear that the employees when
11 they stopped work to present their demands regarding the wage
12 increase, were engaged in protected concerted activity. Now,
13 there was some evidence offered by the Respondent not cited in
14 its closing argument that the employees may have been mistaken
15 in their belief that other employees were being given raise or
16 that Respondent for some reason, because of its contract with
17 Shell could not have given them any more money despite their
18 demands at that time.
19 But at best, this evidence goes to the reasonableness of
20 the employees' demands and their decision to engage in a work
21 stoppage, and in Washington Mutual itself, as well as in Board
22 decisions since that time, it has been held that the
23 reasonableness of the workers' decision to engage in concerted
24 activity is irrelevant to the determination whether, in fact,
25 the activity is protected and a labor dispute exists. And as
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1 long as there not other circumstances and the object of the
2 strike is not illegal, it is still protected.
3 I also note here that the individual Charging Parties did
4 not merely participate in a work stoppage, but the evidence
5 which is undisputed shows that they took a leading role, at
6 least among the sulfur unit employees, in terms of being the --
7 admittedly by the Respondent's witnesses, the four most
8 outspoken among the employees in the sulfur unit during the
9 meeting in the lunch tent.
10 So based on the undisputed evidence, I find that the
11 Charging Parties were, in fact, engaged in concerted activity,
12 protected by Section 7 of the Act on January 13 of 2007.
13 Now, having found that the Charging Parties and the other
14 employees who participated in the work stoppage were, in fact,
15 engaged in protected concerted activity, the next question is
16 whether Respondent fired them, which as everybody seems to
17 recognize is the -- really the key issue in this case, and
18 whether or not if they were fired, it was because of their
19 participation in concerted activity.
20 Now -- and the determination of that issue of whether they
21 were fired turns almost exclusively on credibility. Now, also I
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22 will note before turning to the credibility issue that
23 regardless of whether the Respondent's action is characterized
24 as a termination or merely a job reassignment or removal from a
25 particular work location, it is clear that the motivation for
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1 that action was the employees' participation in protected
2 concerted activity.
3 Carmona himself who was the superintendent in the sulfur
4 unit and, in fact, was the individual who carried out the
5 decision and informed him of what action Respondent was taking
6 admitted, when General Counsel questioned him under Rule 611(c),
7 that Mr. Chavez told him immediately after the meeting in the
8 lunch tent, as they were leaving, that -- to get rid of the four
9 individuals who were the most outspoken, and the four
10 individuals were the Charging Parties in this case here.
11 And Mr. Carmona further admitted that had they not done
12 all the talking or most of the talking in the lunch tent, that
13 they would not have been removed from that job site, so clearly
14 there's no dispute about the motivation behind Respondent's
15 action, regardless of what it turns out to be.
16 Now, in terms of the ultimate question of whether they
17 were fired or simply told to go back to the office for
18 reassignment, I will note that there's no dispute that, as I
19 said, the Respondent's action was taken because of their
20 participation and their outspokenness in the meeting and that
21 the decision was made almost immediately after the meeting in
22 the tent.
23 And the General Counsel called three of the four Charging
24 Parties to testify, and their testimony is fairly consistent. I
25 found only one slight variation among the three. Mr. Molina,
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1 the first witness to testify, indicated that when he got to the
2 trailer, when he was brought there by a foreman named Paul,
3 along with Mr. Sauceda, that Mr. Hurtado and Mr. Vatres or
4 Batres were already inside with Mr. Carmona and that as they
5 entered the office, Mr. Hurtado said to Mr. Molina, They don't
6 want us here; we're going to be terminated, and that when Molina
7 turned to Mr. Carmona, Carmona told him in Spanish, We don't
8 need you anymore, and used a word in Spanish, "corrieron," which
9 Mr. Molina testified meant, You're fired.
10 Now, Mr. Hurtado corroborates Mr. Molina to the extent
11 that he was already there with Mr. Vatres when Mr. Molina came
12 in, and he also says that he is the one who then turned to --
13 well, that he did tell Molina, Would you believe it; they fired
14 us. And then he testifies that Mr. Molina became angry and
15 upset and began talking to Mr. Carmona, but he did not hear what
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16 he was saying, because he was talking to Mr. Vatres at the time.
17 And Mr. Hurtado himself testifies that when he first
18 arrived in the office with Mr. Vatres, that Mr. Carmona said the
19 word -- he testified that Mr. Carmona said, I'm sorry, men; I
20 got to let you go. And then when Hurtado asked him why, Carmona
21 simply shrugged his shoulders and said nothing, and that when
22 Hurtado asked him if the reason that they had spoken out -- that
23 when he asked if the reason that they were being let go was
24 because of what happened in the tent, that again Mr. Carmona
25 simply shrugged his shoulders and did not respond.
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1 Now, Mr. Sauceda, the only discrepancy I found is that he
2 testified that he went to the office alone with his foreman, Mr.
3 Cruz, rather than -- no, not with Mr. Cruz, but with his foreman
4 who he did not recall the name of, rather than saying that he
5 was accompanied there with Mr. Molina. I don't see that
6 discrepancy as being significant, particularly when determining
7 what was said in the office once they got there, because Mr.
8 Sauceda also testified that when they got to the trailer, Mr.
9 Carmona said he had -- I had to let you go, which is very
10 similar to what the other witnesses all testified about.
11 Now, all of the witnesses, all three, did also testify
12 consistently that at one point after being told they were being
13 let go, that Mr. Hurtado asked for a form or a paper, stating
14 the reasons that they were being let go, and that Mr. Carmona,
15 in fact, pulled out a form and started to write it out, until he
16 made a phone call to someone who they all believed would be --
17 was Mr. Chavez, and that after speaking to the individual on the
18 phone, that he then tore up the paper and did not give them one,
19 and when asked again for a form or some other paperwork stating
20 the reason, that he simply told the four individuals that they
21 should go to the office and pick it up with their paycheck.
22 Now, one thing I will note in assessing credibility is
23 that -- well, not in assessing credibility but in making my
24 factual determination, I think if I were to credit the three
25 witnesses, I think it's significant that when Mr. Hurtado asked
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1 specifically whether they were being fired and what the reason
2 was, that Mr. Carmona simply shrugged his shoulders and did not
3 respond.
4 I think if, in fact, they were simply being sent back to
5 the office to be reassigned to another job, he would have said
6 so, rather then he would have said, No, you're not being fired.
7 And the fact that he remained silent was essentially
8 acquiescence in what the employees believed was, in fact,
9 happening.
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10 I also note that Mr. Sauceda testified that before even
11 going to the office, he retrieved his tools, because he believed
12 that simply by the timing of the fact that he was called to the
13 office, that he was about to be fired.
14 Now, looking at the testimony from Mr. Carmona, his
15 version of what happened in the trailer, he testified, as I
16 already indicated, that immediately after leaving the tent, he
17 was instructed to remove the four employees from the plant. And
18 then when he was questioned by counsel for Respondent, he said
19 that it was the -- he was instructed by Mr. Chavez to remove the
20 four.
21 But on examination as part of Respondent's case, he said
22 it was the Shell turnaround manager, Mr. Porterfield, who had
23 observed the meeting in the lunch tent, who asked Mr. Chavez
24 after the meeting, Who were the employees doing most of the
25 talking. And when Mr. Carmona identified the four, Mr.
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1 Porterfield said that the Respondent needed to make a move to
2 get them out of the plant.
3 And this testimony was not corroborated by Mr.
4 Porterfield, so I do not credit it. I believe his testimony on
5 611(c) was the more credible, that it was Mr. Chavez who made
6 the decision and instructed him to remove the four employees
7 immediately after the meeting in the tent.
8 Now, Mr. Carmona says that after he got back -- after the
9 meeting, he instructed his general foreman to bring the four
10 employees to the office, and that when they got there, Mr.
11 Carmona said that he told that they were being removed and to go
12 back to A&L's office, and that he meant in saying this that they
13 were to report to the office for another job assignment. He
14 denied that he specifically told the employees that they were
15 being fired, and in fact, claimed that he did not have any
16 authority to fire them, that at most he had the authority to
17 remove them from the job and tell them to report back to the
18 office.
19 But I note significantly in his testimony, although he
20 said he meant by telling them to go back to the office, he meant
21 to go back for reassignment, he never said specifically that he
22 told the employees that that was the reason they were being sent
23 back to the office, and in fact, all of the employees who
24 testified denied that he at any point told them that they were
25 being reassigned or transferred or to go back to the office for
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1 another job.
2 He corroborates the testimony of the three employees that
3 he did, in fact, begin filling out a form, and he described it
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4 as a form that he would normally use to transfer an employee,
5 but that he stopped filling it out, because Chavez told him not
6 to, and that while he denied tearing up the form and testified
7 that he put it away, he claimed he did not know what happened to
8 the form. It was never produced pursuant to subpoena, and the
9 Respondent stipulated, in fact, that there was no document or
10 record documenting a transfer of these four employees from that
11 work location.
12 Now, in deciding credibility, I note, as I indicated
13 previously, that there were some inconsistencies in Mr.
14 Carmona's testimony between his examination by General Counsel
15 and his examination by Respondent. The General Counsel had
16 brought out some inconsistencies with his affidavit. I note
17 that his testimony was contradicted not only by the three
18 discriminatees who, as Respondent points out, might have a
19 motive for not testifying truthfully, but also by Mr.
20 Porterfield.
21 And although as Mr. Bensey points out, perhaps Shell would
22 be concerned about liability, in this case they have not been
23 named as a respondent. The period for going after them under
24 Section 10(b) has long since expired, so there would be no
25 reason really for Mr. Porterfield not to be truthful in his
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1 testimony, and certainly as opposed to Mr. Carmona. So I find
2 him certainly much more credible.
3 And also, too, I note that in terms of the inconsistencies
4 with his affidavit at the hearing here, Mr. Carmona indicates
5 that he called the office and told them that he was sending
6 someone -- sending the four employees back for reassignment, and
7 at the hearing here, he testified that he spoke to Denise
8 Gonzalez, whereas in his pretrial affidavit, given much more
9 closer in time, he indicated that he did not recall who he spoke
10 to, but he was specific that he did not speak to Ms. Gonzalez,
11 who he identified as the person who he would normally speak to
12 in sending someone back to the office.
13 Now, I also will note in determining credibility that
14 Molina and Hurtado both testified that when they went to the
15 office to pick up their checks the following Friday, almost a
16 week later, that they asked again if they could have a form or a
17 statement, indicating that they were terminated and what the
18 reasons were, and significantly, at that time no one in the
19 office attempted to disabuse them of the notion that they had,
20 in fact, been fired.
21 It would seem to me if Respondent was merely reassigning
22 them to another job and if they had appeared at the office to
23 pick up their check, that they would have been told, No, you're
24 not being fired; in fact, we have work for you. But no one in
25 the office attempted to do that.
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1 And certainly if, as Mr. Carmona testified, he had, in
2 fact, called the office and told them that he was sending these
3 four individuals back for reassignment, it would seem that when
4 they went -- finally did go to the office to pick up their
5 check, someone at the office would have known that and said
6 something to them about a possible reassignment.
7 Now, I also note that Mr. Swindoll, who was a founder and
8 owner of the company, did testify about his experience in the
9 industry and the amount of work that was available and the
10 difficulties he was having in finding employees to fill all of
11 the needs at the Shell plant and at other locations where they
12 were performing contracts. Respondent argues that Respondent
13 did not have any financial incentive in terminating the four
14 employees.
15 Yet significantly, Mr. Swindoll never explained in his
16 testimony why, if in fact there was a need for employees at the
17 time, when the four employees did show up at the office to pick
18 up their check, there was no effort made to reassign them to
19 another job.
20 I also note that, in terms of the financial -- the
21 argument that Respondent did not have a motivation to terminate
22 the employees because it was in such need of employees at the
23 time, that it certainly appears from Mr. Carmona's testimony
24 regarding his conversation with Mr. Chavez immediately after the
25 meeting in the lunch tent, that certainly Respondent would have
250
1 been concerned about retaining in its employ four employees who
2 had been perceived to be disruptive and outspoken and perhaps
3 leaders in bringing about a work stoppage, and that that
4 certainly would have been a motive in Respondent not wanting to
5 send them to another job where perhaps the same conduct would
6 have occurred, despite the need for any employees.
7 And I also note, too, one final note in resolving
8 credibility that it appears that in taking the action that he
9 did, that Mr. Carmona departed from his normal practice. He
10 indicated if he were transferring employees back to the office,
11 there was a form that he would fill out to do that, and in this
12 case, although he started to fill out the form, he did not
13 complete it at the instructions of Mr. Chavez.
14 And it would seem to me that if all that was happening is
15 that the employees are being removed from this one job but were
16 still being considered employees who could be used elsewhere, he
17 would have done what he normally would have done, which would
18 have filled out the form and sent it to the office, so that the
19 reassignment could be effectuated.
20 And I think as General Counsel points out, an adverse
JD(ATL)–24–07
14
21 inference should be drawn from the fact that there was no such
22 documentation, and that the inference is that Respondent
23 attempted to conceal the actions it was taking by not having any
24 record of either a termination or the reasons for it.
25 Now, the Board, as General Counsel points out, in dealing
251
1 with the question of whether employees have been discharged --
2 and, again, it's clear that it is the burden of the General
3 Counsel as an element of the case to, in fact, establish that a
4 discharge occurred, and that's Nations Rent is the cite for
5 that, 342 NLRB 179. But the Board has held that the fact of
6 discharge does not depend on the use of any formal words of
7 firing.
8 Quoting from the Board from the North American Dismantling
9 Corporation case, cited by General Counsel, "It is sufficient if
10 the words or action of the employer would logically lead a
11 prudent person to believe his or her tenure has been
12 terminated." And North American Dismantling was quoting another
13 case, NLRB versus Trumbull Asphalt Company, 327 F.2d 841 at page
14 843, and Eighth Circuit, 1964, case. And another lead case
15 dealing with the standard for determining whether an employee
16 has been discharged is Ridgeway Trucking Company at 243 NLRB
17 1048, a 1979 decision, enforced at 622 F.2d 1222 by the Fifth
18 Circuit in 1980.
19 And also the Board has held that the events must be viewed
20 from the employee's perspective, and I'll quote from the
21 decision of the Board in a case called Flat Dog Productions,
22 Incorporated, 331 NLRB 1571, 2000, enforced by the Ninth Circuit
23 in 2002 at 34 Fed. Appx. 548. The Board said, "In determining
24 whether or not an employee has been discharged, the events must
25 be viewed through the employee's eyes and not as the employer
252
1 would have viewed them. The test to be used is whether the acts
2 reasonably led the employees to believe that they were
3 discharged.
4 "If those acts created a climate of ambiguity and
5 confusion, which reasonably caused employees to believe that
6 they were discharged or at the very least, that their employment
7 status was questionable because of their protected activity, the
8 burden of the results of that ambiguity must fall on the
9 employer."
10 So here I think the best that could be said by the
11 testimony even of Mr. Carmona, if I were to credit it, is that
12 by telling the employees to go back to the office and removing
13 them from the work site, he was creating an ambiguity with
14 respect to their employment status, and certainly Respondent,
JD(ATL)–24–07
15
15 either Mr. Carmona, Mr. Chavez, and there was testimony from Mr.
16 Hurtado that he did attempt to contact Mr. Chavez later to find
17 out his status, that no one from the Respondent at any point
18 attempted to clarify any ambiguity that was caused by Mr.
19 Carmona's actions or statements in the office on January 13.
20 So based on my decision to credit the testimony of Mr.
21 Molina, Mr. Hurtado and Mr. Sauceda, I conclude that Carmona's
22 words and actions in the office on January 13 would reasonably
23 lead an employee to believe that they were being fired. He told
24 them they were no longer needed. He did not say anything to
25 suggest that they could be reassigned if they went to the
253
1 office, and when the employees did go to the office and
2 Respondent did have an opportunity to clarify any ambiguity,
3 when Mr. Molina and Mr. Hurtado asked for a written form
4 clarifying their status, no one attempted to correct them and
5 told them that they had not been fired.
6 Now, having found that Respondent, in fact, discharged the
7 four Charging Parties and that in doing so, it was motivated by
8 their participation in conduct that was protected under Section
9 7 of the Act, I must conclude as alleged in the complaint that
10 Respondent has violated Section 8(a)(1) of the Act.
11 With respect to a remedy, ordinarily the remedy for an
12 unlawful discharge would be reinstatement and a make-whole
13 remedy. Now, although there was some discussion before the
14 hearing when we were attempting settlement as to whether or not
15 back pay would have been tolled when the turnaround at the Shell
16 plant concluded in March of 2007, there was testimony in this
17 proceeding from Mr. Swindoll that does suggest that Respondent
18 does sometimes transfer employees from one job to another, and
19 that particularly in 2007, that Respondent had a need for
20 employees, not just at the Shell plant but at other projects
21 that were ongoing.
22 Now, of course, the evidence is not clear as to whether or
23 not these four individuals would have worked out the turnaround
24 at Shell and then been transferred to another job. Of course,
25 as the Board has routinely said in compliance proceedings, if
254
1 there is any doubt, it's to be resolved against the wrongdoer.
2 But suffice it to say, at this point in time, the evidence is
3 not clear enough for me to limit back pay, so I will recommend
4 that the traditional remedy for a discharge, which would be an
5 offer of reinstatement and back pay.
6 But I will leave any question as to whether or not work
7 was available to which they could have been reinstated and
8 whether or not the back pay continued beyond the Shell job up to
JD(ATL)–24–07
16
9 the present time for resolution in a compliance stage when the
10 question can be more fully investigated, and a determination
11 made on the basis of all the evidence and not just the limited
12 testimony I heard in this case.
13 Now, you had indicated, Mr. Bensey, that you wanted to
14 comment on the notice. Was it just that portion of the notice,
15 or was there anything else that you had an objection to?
16 MR. BENSEY: Well -- and I may have other issues that come
17 up after I've had a greater chance to review this, but the one
18 issue that does come up most quickly to mind is the issue of
19 reinstatement. I think the testimony you have here already is
20 the Shell job is ended. We did not get testimony as to how long
21 the Lyondell or Valero jobs would have gone on. Since they were
22 also, I believe, turnarounds, they also would have been of
23 limited duration.
24 So it may well be that none of those positions are open at
25 this time, because of the conclusion of the turnaround process,
255
1 so it may be that reinstatement is, you know, just not possible.
2 JUDGE MARCIONESE: Okay. And that's why I indicated that
3 I'm going -- although the order will say, Reinstate, I think
4 generally -- I'm not sure if it says it here -- to their former
5 jobs, usually it says, if they exist, or something like that.
6 MR. BENSEY: It does not in what's been proposed.
7 JUDGE MARCIONESE: I will consider revising the notice,
8 but generally, as I said, that's why I'm leaving it to the
9 compliance stage, so that once an order issues -- and, again, my
10 decision here is not the final say in this matter. Once a final
11 order issues on the unfair labor practice proceeding, if, in
12 fact, my decision is upheld, then at that point at the
13 compliance stage, a full examination can be made as to whether
14 or not there was other work available or even if there is work
15 available at the time there's a final order, so that whether
16 reinstatement is available to the discriminatees at that time,
17 and also as to the duration of any back pay period.
18 So you certainly will be free to litigate in subsequent
19 compliance proceedings or even administratively with the
20 compliance officer the whole question of reinstatement and back
21 pay.
22 All right. Now, General Counsel has also asked for a
23 special remedy, and I think from the evidence we've heard, I
24 don't think there is any dispute that the job did, in fact, end
25 at the Shell plant, and that all the employees who were there on
256
1 January 13, or most of them perhaps, may have been dispersed to
2 other jobs, either with the Respondent or with other employers.
JD(ATL)–24–07
17
3 And under those circumstances, it's normal for the Board to
4 require that notices not only be posted by the Respondent at its
5 facility, but also be mailed to any employees who were on the
6 payroll at the time of the unfair labor practice, which would be
7 as of January 13 of 2007.
8 And I will grant General Counsel that request in this
9 proceeding.
10 MR. BENSEY: And I do request clarification on that point.
11 Are we talking about all employees of A&L, or the ones who were
12 at the hydro and sulfur units on that date?
13 JUDGE MARCIONESE: It would be all employees who were
14 employed at the Shell facility, because although only the hydro
15 employees and sulfur employees may have been directly involved
16 in the concerted activity, as with any work location, I'm sure
17 word got around to basically anyone who was working on that
18 turnaround, so that it should be mailed to anyone on the payroll
19 at that time.
20 Now, having decided the matter, basically the next step is
21 once I receive the transcript, which will contain my decision, I
22 am required to issue a decision or a formal document, certifying
23 the transcript of my decision. That will also include the order
24 and the remedy that we've talked about, and then that will be
25 served in writing on all parties of record.
257
1 Now, at that point, any party who is unhappy with either
2 my decision or any of the rulings that I've made at the
3 hearing -- and that includes evidentiary rulings -- has a right
4 to file exceptions with the Board in Washington. I will refer
5 you to the statement of standard procedures and the Board's
6 rules and regulations for how to go about filing exceptions, and
7 I think there's a certain time limit for doing that, which will
8 be spelled out in the order that issues from me.
9 And then the Board will review my decision and my rulings
10 and findings, and they'll either affirm me or not, and then, of
11 course, from that point, anyone unhappy with the Board's
12 decision has a right of appeal to the Court of Appeals and
13 beyond.
14 All right. I'm not sure if I indicated it in the hearing
15 or previously, but certainly the parties are always free to
16 discuss settlement right up until the entry of a final order.
17 There were some discussions before the hearing. There's
18 certainly nothing to prevent the parties from continuing to
19 pursue whether settlement is possible at this point, and if you
20 do so, certainly let me know.
21 Usually it will take me about two to three weeks from the
22 time I get the -- between now and when I'll have the transcript
23 and my order will issue, and then the appeal period will run
24 starting from then.
APPENDIX B
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise retaliate against any of you for engaging in protected
concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Francisco Hurtado, Carlos Molina,
Lazaro Sauceda, and Elvin Vatres, a/k/a Batres full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make Francisco Hurtado, Carlos Molina, Lazaro Sauceda, and Elvin Vatres a/k/a
Batres whole for any loss of earnings and other benefits as a result of our discharging them on
January 13, 2007, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Hurtado, Molina, Sauceda, and Vatres a/k/a Batres, 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.
A&L Industrial Services
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Room 8A24
Fort Worth, Texas 76102-6178
Hours: 8:15 a.m. to 4:45 p.m.
817-978-2921.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 817-978-2925.