Allstate Power Vac, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 11, 2008

29-CA-028264 (N.L.R.B. Aug. 11, 2008)

JD(NY)–30–08
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ALLSTATE POWER VAC, INC.
and Case Nos. 29-CA-28264
29-CA-28351
LABORERS INTERNATIONAL UNION OF 29-CA-28394
OF NORTH AMERICA, LOCAL 78 29-CA-28556
29-CA-28594
29-CA-28637
29-CA-28683
ALLSTATE POWER VAC, INC.
Employer
and 29-RC-11505
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 78
Petitioner
Brent E. Childerhose, Esq. and
Linda Harris-Crovella, Esq.,
Counsel for the General Counsel
Robert Ziskin, Esq. and Richard
Ziskin, Esq., Counsel for the
Respondent
DECISION
Statement of the Case
RAYMOND P. GREEN, Administrative Law Judge. I heard these consolidated cases in
Brooklyn, New York, on various dates in April and May 2008.
The Representation Case
The Union filed a petition in 29-RC-11505 on August 30, 2007 and pursuant to a
Stipulated Election Agreement approved by the Regional Director on September 17, 2007, an
election was conducted on October 5, among the employees in the following unit:
All full-time and regular part-time field technicians, drivers, pump operators,
mechanics and working supervisors employed by the Employer at its facilities
located at 180 Varick Street, Brooklyn, New York and 1 North 12th Street,
Brooklyn, New York, including field technicians and operators performing work
for the new York city Department of Environmental Protection, but excluding all
other employees, including office and temporary employees, guards and
supervisors as defined in Section 2(11) of the Act.
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A revised Tally of ballots showed that of approximately 58 eligible voters, 28 cast ballots
for the Union, 26 cast votes against unionization and four cast challenged ballots. The
challenges were therefore sufficient in number to affect the outcome of the election. Three of
the challenges were made by the Union, these being challenges to the votes of Sean Burke,
Donald Sekulski and Abdool Sideik. One of the challenges was made by the Employer; that
being to the vote cast by Jose Adames, whom the Employer claims was not employed as of the
date of the election. The Union contends that he was illegally discharged because of his union
activities and therefore was an eligible voter.
The Union filed a group of Objections and the Regional Director, on January 8, 2008
issued a Report on Challenges and Objections and a Notice of Hearing. With respect to
Objections 2, 3, 5 and 6, the Regional Director concluded that they had no merit and
recommended that they should be dismissed. With respect to Objection No. 4, the Director
ordered that a hearing be conducted before a hearing officer. However, with respect to
Objection No. 1, he ordered that this particular objection, which alleged the discriminatory
discharge of Jose Adames, be consolidated with the hearing on the unfair labor practice cases
described below.
Regarding the challenges, the Regional Director ordered that a hearing be conducted
before a hearing office on the issues of whether Sean Burke, Donald Sekulski and Abdool
Sideik were in the unit and therefore eligible voters whose ballots should be opened. However,
as to the ballot of Jose Adames, the Director ordered that a hearing on whether he was eligible
to vote should be held before an Administrative Law Judge because the resolution of his
eligibility was dependent upon whether he was lawfully or unlawfully discharged on October 1,
2007.
On March 25, 2008, Rachel Mead Zwighaft issued a Hearing Officer’s Report and
Recommendations on Objections and Challenges. In this report, made after a hearing, she
recommended that the challenges to the ballots of Sean Burke, Donald Sekulski and Abdool
Sideik be sustained on the grounds that these individuals were not employed in classifications
included in the Stipulated Election Agreement. She concluded and recommended to the Board
that the Union be certified as the collective bargaining representative. Alternatively, she
recommended that in the event that the Board did not agree with the eligibility findings, then the
election should be set aside based on certain conduct by the Employer’s agents that she found
to be objectionable.
On July 16, 2008, the Board affirmed the Hearing Officer’s recommendations and issued
a Certification of Representative.
The Unfair Labor Practice Cases
The charge in 29-CA-28264 was filed on April 16, 2007. The charge in 29-CA-28351
was filed on June 20, 2007. The charge in 29-CA-28394 was filed on July 16, 2007. The
charges in 29-CA-28556, 29-CA-28594, 29-CA-28636 and 29-CA-28683 were filed respectively
on October 9, 16, 29, November 28 and December 13, 2007.
On August 27, 2007, the Regional Director issued an Order Consolidating Cases and a
Consolidated Complaint that was amended on January 29, 2008. In substance, the unfair labor
practice allegations are as follows:
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1. That on or about April 13, 2007, the Respondent, for discriminatory reasons refused
to consider for hire, Edwin DeJesus, Fabian Derewiecki, Eli Kent, Manuel Ortiz, Jorge Roldan,
Robert Rowek and Kryzsztof Walek.
2. That in early May 2007, the Respondent, by Glenn Burke, its General Manager,
threatened employees with loss of raises and bonuses if they continued to support or assist the
Union.
3. That on or about May 30, 2007, the Respondent, for discriminatory reasons,
subjected Angel Rivera to more onerous working conditions by assigning him the arduous and
meaningless tasks of digging holes and of loading and unloading drums onto a truck in a heavy
uniform.
4. That on or about May 30, 2007, the Respondent promulgated rules prohibiting
employees from wearing union stickers on their hardhats and wearing union clothing with union
insignia.
5. That on or about June 4, 2007, the Respondent for discriminatory reasons,
discharged Jose Adames, Miguel Bisono, Jose Castillo, Angel Rivera and Victor Vasquez.
6. That on or the following dates, the Respondent discharged the named employees for
discriminatory reasons.
Jose Adames October 1, 2007
Rafael Bisono October 5, 2007
Miguel Bisono December 12, 2007
7. That on or about October 5, 2007, the Respondent, for discriminatory reasons,
suspended William Dominich and Hector Soler.
Based on the evidence as a whole, including my observation of the demeanor of the
witnesses and after consideration of the Briefs, I hereby make the following findings and
conclusions.
Findings of Fact
I. Jurisdiction
The Respondent admits and I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. I also conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
a. Background
The Company is engaged in the business of removing or cleaning hazardous waste. Its
home office is in Rahway, New Jersey and it operates throughout the Northeastern United
States. In relation to its New York operations, (consisting of two facilities), its principle customer
is Consolidated Edison, (Con Ed), for whom it contracts to change man-hold covers and to flush
and clean transformer vaults and man holes. Most of its New York employees fall into three
categories; (1) field technicians who essentially are relatively unskilled laborers, (2) drivers and
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operators of trucks; and (3) field supervisors who go out into the field and are in charge of jobs.
Drivers are people who drive trucks and equipment operators are people who operate the
vacuum trucks that are used to suck out dirt from manholes. Both of these positions require
Commercial Driving Licenses. (CDL licenses). All parties agree that the people who are called
field supervisors are employees and not supervisors within the meaning of Section 2(11) of the
Act. In the Brooklyn operations there are about 8 to 12 field supervisors. They voted in the
election.
In addition to a group of permanent employees who work on a regular basis, (and who
are assigned to the shop when no outside jobs are scheduled), the Company sometimes utilizes
temporary workers who are referred by another related company located in New Jersey called
Paragon. It appears that Paragon is owned by the same person that owns Allstate. The
Stipulated Election Agreement excluded those temporary workers.
The person in charge of the New York operations is Glen Burke who is the General
Manager. He has substantial authority with respect to the New York employees and can hire
and fire at his own discretion. He reports to management located in Rahway, New Jersey.
Working as supervisors under Burke for the Brooklyn locations, are Chris Baran, the operations
manager, Donald Zorgiski a coordinator, and Al Guerrero who is the local health and safety
manager.
The Union has been engaged in organizing two types of companies in the New York
Metropolitan area. First, is a set of companies that deal with various types of hazardous
materials such as Allstate. The second are a set of companies who are engaged in asbestos
removal.
b. Covert Salting and Company
Knowledge of Union Activities
By letter dated March 9, 2007, the Union sent a letter to the Respondent indicating (a)
that it was commencing an organizing drive at Allstate, (b) that the NLRA precluded the
employer from restraining or coercing its employees, and (c) that it would be distributing
literature to Allstate employees at various projects.
On March 21, 2007, the Company placed a help wanted ad in the Daily News indicating
that it was seeking to hire operators who had CDL licenses (commercial driving licenses) and
H&T, (hazardous material handling endorsements). Union agent Byron Silva thereupon sent
two members, Jose Castillo and Angel Rivera, who went to Allstate’s Varick Street offices and
filled out applications for jobs as field technicians. They could not apply for the operator/driver
job because neither had the required commercial driver’s license. They filled out the application
forms in the office, showed their social security cards and driver’s licenses and were interviewed
separately by Chris Baran. At the conclusion of the interviews, they both were told that they
could have jobs and arrangements were made for them to get a drug test. Neither informed the
Employer that they were members of a Union or that they intended to organize employees on
behalf of the Union. They were, as described by Silva, “covert” salts and were instructed to
keep their union membership secret until the appropriate time. Castillo and Rivera were told by
the Union that if they obtained jobs, the Union would make up the difference in the wage rate
paid by the Employer and the wage rate that they had been getting from being employed as
shop stewards at union employers. Also, the Union agreed to provide them with any benefits
not provided by Allstate.
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Castillo and Rivera did not hear anything until later in April 2007. Nevertheless, they
started as field techs on April 16 or 17, 2007 and spent their first week in a training program
held in Rahway, New Jersey. (In this regard, the evidence shows that the Employer typically
amalgamates a class of new hires for a 40 hour training program. Both Castillo and Rivera filled
out new job applications on April 17, 2007. A summary of employees listed by hire dates, (GC
Exhibit 20), shows that there were four other field techs also hired in April 2007. These were
Luis Perez Jr., Delvis Vargas, Freddy Cedeno Perez, and Jose Peralta. This exhibit also shows
that there were two equipment operators, (Phillip Monastiriotis and Conrad Unthank), hired in
early May 2007 and two other persons, (David Nathanial and Victor Vasquez), listed as field
techs who were hired respectively on May 8 and May 23. 1
As instructed, Castillo and Rivera engaged in no organizing activities during their initial
period of employment and did not “come out” until the morning of May 30, 2007. However, as
they joined the Union in handing out literature at the Company’s premises on that date, the
timing of their layoffs on June 4, strongly suggests that a motivation for this action was because
the Company had become aware that they were union supporters.
According to Silva, in or about March 2007, either shortly before or shortly after Castillo
and Rivera got their jobs, the Union managed to speak independently to some of the employees
including Jose Adames, Felix Rodriguez and Jose Arroyo. Silva testified that at one meeting
held in March 2007, he obtained three authorization cards and that at a second meeting, he
obtained another three cards. Employee Jose Adames testified that he first heard about the
Union from Al Guerrera, who told him that he, (Guerrera), thought that getting a union into the
shop would be a good idea. (As noted above, the parties agree that Guerrera is a supervisor as
defined in 2(11) of the Act).
The evidence shows that the Company became aware that that the Union was
interested in organizing its employees as early as March 9, 2007 because the Union’s agents
told them so. But did the Company become aware that any of its employees were interested
before May 30? In this regard, the General Counsels offered the testimony of Jose Adames, an
alleged discriminate, who testified that sometime in April or May 2007, he heard Burke tell a
group of about eight employees that “anyone who wanted to be union wouldn’t get bonuses or
raises or anything.” Mr. Adames testified that the group included Miguel Bisono, Felix
Rodriguez and Jose Arroyo. Although Miguel Bisono was called as a witness by the General
Counsels, he did not corroborate Adames. Nor did the General Counsels offer any other
corroboration of this story. Inasmuch as I conclude that Adames was not a reliable witness and
absent any corroboration on this point, I shall not credit this assertion. I therefore recommend
that the allegation of the Complaint based on this testimony be dismissed.
c. Overt Salting
On the morning of April 13, 2007, Silva sent teams of union agents into the Company’s
office to apply for jobs. They were sent in pairs and they were given digital recorders to
memorialize the conversations. When they entered the building, they wore union jackets so that
they would be identified as coming from Local 78. They all talked to a receptionist in the office
named Nadia who was not called by either side to testify in this proceeding. There was no
evidence to suggest that this person had the authority to hire anyone or that she had the
authority to consider anyone for hire. At most, the evidence shows that her functions included

1 The wage rate listed for David Nathanial is $15.00 per hour and this indicates to me that he was not
hired as a field tech because his rate is almost 50% more than that for a field tech.
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handing out job application forms and asking applicants to provide identification in the form of
drivers’ licenses and social security cards.
The evidence indicates that as of April 13, 2007, the Company having recently deciding
to hire around four laborers, (including union salts Jose Castillo and Angel Rivera), did not
immediately need any field technicians. 2
The recording of the visit by Krzysztof Walek and Manuel Ortiz is, in pertinent part, as
follows:
MANUEL ORTIZ: -- application -- license 'cause we're –
OFFICE WOMAN: Okay, but –
MANUEL ORTIZ: -- we can, you know, any special --
OFFICE WOMAN: No, we're not a union shop.
MANUEL ORTIZ: I'm sorry?
OFFICE WOMAN: We're not a union shop.
MANUEL ORTIZ: That's no problem. That's no problem. The only thing is when I come
to work, you know, I expect to organize company.
OFFICE WOMAN: We're not interested in becoming a union.
KRZYSZTOF WALEK: You're not expecting to become --
MANUEL ORTIZ: Why not? Why?
OFFICE WOMAN: 'Cause we're not -- we're not a union shop and we're not interested
in becoming a union shop.
MANUEL ORTIZ: So that means you no -- you cannot even take --
OFFICE WOMAN: Oh, we can --
MANUEL ORTIZ: You cannot give me any chance to work --
OFFICE WOMAN: If you want to sit down and fill out an application -- driver's license
and --
MANUEL ORTIZ: But you say -- when you say that you no -- you say that you don't
expect to get union --
OFFICE WOMAN: Are you -- do you have a driver's license?
KRZYSZTOF WALEK: Yeah, we do have.
OFFICE WOMAN: Then let me make a copy of it, I'll be happy to give you an application
for -- I need a CDL with a HAZMAT and tanker endorsement.
KRZYSZTOF WALEK: So you hire only with CDL and license?
OFFICE WOMAN: We're only hiring drivers right now. You have to have a CDL with
HAZMAT and tanker endorsement on it.
KRZYSZTOF WALEK: Okay.
MANUEL ORTIZ: Okay. You don't send your workers for training?
OFFICE WOMAN: If you have your license -- when we hire we hire them with CDL with
HAZMAT and tanker --
MANUEL ORTIZ: Okay.
OFFICE WOMAN: -- endorsements on it.
MANUEL ORTIZ: Okay.
OFFICE WOMAN: That's what we're hiring right now. You have to --

2 Although the evidence is that Castillo and Rivera did not actually begin their training program until
April 17, 2007, their testimony indicates to me that the Company committed itself to hiring these two
people almost immediately after they applied for jobs on March 21, 2007. It seems probable to me that
they were not immediately put on the payroll because the Company waited to assemble a class of new
employees for training in New Jersey. This is a 40 hour training course.
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MANUEL ORTIZ: What if I didn't -- I have it but I don't have it with me right now.
OFFICE WOMAN: Then when you come back and fill out -- you bring me your license,
I'll make a copy of it, bring your social security card --
KRZYSZTOF WALEK: I have everything. I have everything.
OFFICE WOMAN: Then I'll be happy to --
MANUEL ORTIZ: (Inaudible) --
OFFICE WOMAN: No, you have to fill it out right here.
MANUEL ORTIZ: -- job for you?
OFFICE WOMAN: You have to have it here.
MANUEL ORTIZ: There is nothing else we can work on, only driver's license?
OFFICE WOMAN: I have nothing else right now --
MANUEL ORTIZ: And only for --
OFFICE WOMAN: -- only drivers and you have to know how to drive standard.
MANUEL ORTIZ: Okay. Well, thank you very much.
KRZYSZTOF WALEK: Thank you.
OFFICE WOMAN: You're welcome.
(END OF RECORDING)
The recording of the meeting involving union agents Edwin DeJesus and Robert Rowek
was as follows:
ROBERT ROWEK: Good morning.
EDWIN DE JESUS: My name is Edwin; is it free to go apply for a job?
NADIA: For?
EDWIN DE JESUS: For applications?
NADIA: For what, a driver?
EDWIN DE JESUS: For worker, HAZMAT, whatever it is.
NADIA: For driver is what we're accepting right now. With HAZMAT and tanker
endorsements --
EDWIN DE JESUS: Okay. I'm from Local 78, I'm one of the organizers and this is Rob,
we're looking for work. We want to organize the Company so we want to --
NADIA: What do you mean you want to organize the Company?
EDWIN DE JESUS: We're from the Union.
ROBERT ROWEK: We are from Local 78.
EDWIN DE JESUS: Local 78, yeah.
NADIA: Okay. Is someone expecting you?
EDWIN DE JESUS: No, no one is expecting -- I want an application for a job. I want to
work to organize the Company so you can come -- I mean, the Company could become
organized and become a union contractor.
NADIA: Well, who said that we wanted --
EDWIN DE JESUS: I mean, I -- I want to help you guys and you need me.
NADIA: (Inaudible).
EDWIN DE JESUS: But can I get an application?
NADIA: Yeah, absolutely you can get an application. There aren't many -- but do you
have HAZMAT and tanker endorsements?
EDWIN DE JESUS: Yeah, I have HAZMAT, I have all my licenses.
NADIA: Okay. Can I see it, please?
EDWIN DE JESUS: I don't have it with me.
NADIA: You don't have it with you? We have to know otherwise we -- 'cause that's the
only thing we're hiring for.
EDWIN DE JESUS: But can I get the application so I can fill it out and --
NADIA: (Inaudible).
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ROBERT ROWEK: Yeah, if we can fill out the application and just --
NADIA: Absolutely. Let me have your license and I'll make a copy of it and I'll give you
an application, you can sit down and fill it out.
EDWIN DE JESUS: Okay.
NADIA: Can I just --
EDWIN DE JESUS: I don't have it. Can I get -- take this and fill it out?
NADIA: No, you need to give me your license, I will make a copy of it --
EDWIN DE JESUS: You need the license?
NADIA: And your social security card --
EDWIN DE JESUS: Okay.
NADIA: -- I will attach it to your application, you sit here and fill it out and I'll take you
right out to take the test right away.
EDWIN DE JESUS: Okay.
NADIA: Okay.
EDWIN DE JESUS: All right. Can I get -- come back with (inaudible) –
NADIA: Yes, HAZMAT and tanker, A or B CDL. You have to be able to drive standard.
EDWIN DE JESUS: Okay. Now, what about the hazardous waste workers; what are
you -- you hiring anybody for that?
NADIA: No, not here. Field technicians? I have none.
EDWIN DE JESUS: No, not right now?
NADIA: No.
EDWIN DE JESUS: Okay.
ROBERT ROWEK: (Inaudible.)
EDWIN DE JESUS: Sorry, what was your name?
NADIA: Nadia.
ROBERT ROWEK: Is there a number to call? (Inaudible) can you give me application
and I'll come back with all information, all different thing, my license, everything?
NADIA: Bring your license, bring your social security card.
ROBERT ROWEK: Uh-huh.
NADIA: And then --
ROBERT ROWEK: Copy or original, right?
NADIA: I'm sorry?
ROBERT ROWEK: A copy? You want only original license?
NADIA: I need your original license --
ROBERT ROWEK: All right.
NADIA: -- and I need your original social security card.
ROBERT ROWEK: No problem.
EDWIN DE JESUS: Okay.
ROBERT ROWEK: That's the office number; right?
NADIA: This is the office number.
EDWIN DE JESUS: And your name, I'm sorry?
NADIA: Nadia.
EDWIN DE JESUS: Nadia. Okay. Thank you very much.
(END OF RECORDING)
The recording of the meeting involving Eli Kent, the union’s Director of organizing, and
business agent Jorge Roldan is as follows:
ROLDAN: Good morning. My name is Jorge Roldan. Can I get an application?
OFFICE WOMAN: Do you have HAZMAT and tanker endorsement on your CDL?
ELI KENT: I got my HAZMAT -- training, just regular license. I don't know what --
OFFICE WOMAN: We're taking applications for CDL drivers.
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ELI KENT: Only?
OFFICE WOMAN: Only if --
ELI KENT: Any other positions are open for that?
OFFICE WOMAN: No here. A and B --
ELI KENT: Okay.
OFFICE WOMAN: -- CDL, HAZMAT and tanker. Come in and fill out an application.
ELI KENT: Okay. I -- any time I can come back?
OFFICE WOMAN: Yeah, any time before 4:00.
ELI KENT: All right. We got -- is it -- or just for -- union members?
OFFICE WOMAN: Oh, every one.
ELI KENT: Oh yeah?
OFFICE WOMAN: Everyone, look at our ad. Yeah.
ELI KENT: Any time?
OFFICE WOMAN: Any time before 4:00.
ELI KENT: All right.
OFFICE WOMAN: Bring your license with you and your social security card.
ELI KENT: Okay.
OFFICE WOMAN: And we'll test you.
ELI KENT: Uh-huh.
OFFICE WOMAN: You'll test right away so if you come early and we have a guy here to
test you we'll be happy to take -- you have to be able to drive standard.
ELI KENT: Oh, stick shift, okay.
OFFICE WOMAN: Yeah.
ELI KENT: This guy, I mean, he's got the licenses, he's got everything.
OFFICE WOMAN: You want to fill it out now? You got it?
ELI KENT: No, I don't have my license with me because I have to go back and bring it.
OFFICE WOMAN: Okay, go back and bring it --
ELI KENT: (Inaudible) also at the same time.
OFFICE WOMAN: Okay, go back, bring me your social, fill out the app, we'll have
somebody test you. If I have a driver here I'll have somebody test you.
ELI KENT: Oh, okay.
OFFICE WOMAN: Okay?
ELI KENT: All right. Okay. I mean, that's how you -- with everyone, though? They
have to -- you've got to come with all your material?
OFFICE WOMAN: Um-hmm.
ELI KENT: All your licenses?
OFFICE WOMAN: Absolutely. How am I supposed to know --
ELI KENT: And just make copy and give back; right?
OFFICE WOMAN: Yeah, I'm going to make a copy, back and front and give it right
back.
ELI KENT: Okay. Can I fill out an application for any other positions you have?
OFFICE WOMAN: There's nothing open right now.
ELI KENT: No, what about in the future?
OFFICE WOMAN: Absolutely, just look to see -- we run ads in the paper all the time.
ELI KENT: Okay. Then you won't -- you don't keep applications on file or anything?
OFFICE WOMAN: Yeah -- no. I mean, I can -- I can take it if you would like to give it to
me right now and I'll keep it on file but I'm not hiring for that.
ELI KENT: Yeah.
OFFICE WOMAN: For field technician if that's what you're looking for.
ELI KENT: Okay.
OFFICE WOMAN: Okay?
ELI KENT: All right.
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OFFICE WOMAN: I would be happy to take the application and if we have a driver here
take you out for test drive.
ELI KENT: I'll try to come back tomorrow then.
OFFICE WOMAN: Okay. Tomorrow's Saturday.
ELI KENT: Oh.
OFFICE WOMAN: Monday.
ELI KENT: (Inaudible.)
(END OF RECORDING)
The recording of the conversation involving union business agents Fabin Derewiecki and
Guian Rivera is as follows:
GUIAN RIVERA: Hi, Good morning. How are you? We came to apply for a job.
OFFICE WOMAN: For driver?
GUIAN RIVERA: Any -- anything that you have available.
OFFICE WOMAN: -- HAZMAT driver.
GUIAN RIVERA: There's nothing else you got now for -- what about if I went to the temp
company -- you think I'll be able to get it from Lydia Rivera at the company -- do you
think I have a chance there since I don't have any (inaudible)?
OFFICE WOMAN: What we're hiring right now is drivers.
GUIAN RIVERA: Drivers?
OFFICE WOMAN: (Inaudible).
GUIAN RIVERA: All right, I think I might be able to probably to get a license 'cause I'm
union, I want -- my purpose is to organize the company.
OFFICE WOMAN: We're not interested in (inaudible).
GUIAN RIVERA: Yeah? But your workers might be; right?
OFFICE WOMAN: No, we're not --
GUIAN RIVERA: You're not and because of that you're not hire me or something?
OFFICE WOMAN: No, (inaudible) is a social and a --
GUIAN RIVERA: If I have a --
OFFICE WOMAN: (Inaudible).
GUIAN RIVERA: All it has to be is CDL? Anything else you have like --
OFFICE WOMAN: That's all we're hiring for right now.
GUIAN RIVERA: And probably I can get something through -- people; no? Or Lydia
Rivera or something?
OFFICE WOMAN: I don't know who Lydia Rivera is.
GUIAN RIVERA: I think that --
OFFICE WOMAN: (Inaudible) --
GUIAN RIVERA: -- they the one who -- that refer people to here so maybe I go there
and apply or --
OFFICE WOMAN: You can try, I don't even know anything about --
GUIAN RIVERA: You think I can do that?
OFFICE WOMAN: You can --
GUIAN RIVERA: I will get --
OFFICE WOMAN: You've got a have -- and a driver's license.
GUIAN RIVERA: That's all it takes?
OFFICE WOMAN: That's it.
GUIAN RIVERA: All right, I appreciate your time. Thanks.
OFFICE WOMAN: (Inaudible.)
GUIAN RIVERA: Bye-bye.
OFFICE WOMAN: Bye-bye.
(END OF RECORDING)
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As noted above, all of these people who applied for employment were union business
agents and/or organizers. In the case of Eli Kent, he was the Union’s director of organizing and
Derewiecki, in addition to being a business agent, had the job of dispatcher, which means that
he refers members to jobs as they are called into the Union by contracting employers.
With respect to these “salts” there is evidence that they really were not looking for
employment. All of these people had full time jobs at the Union, either as business agents,
organizers or dispatchers. In Eli Kent’s case, he was the Union’s Director of Organizing and
was then involved in an organizing campaign involving companies in another industry. They
were asked to participate in this event on April 13 or a few days before and no arrangements
were made to have their job functions covered by others in the event that they were hired.
Indeed, Silva testified that he did not expect that any would be hired. When they were invited by
the office person to submit applications for non-driver jobs, accompanied by their social security
cards and driver licenses, they never followed up on this invitation and not one made any further
attempt to apply for employment with Allstate.
I also note that as of April 13 when they applied for work, the jobs then available
required CDL licenses with hazmat endorsements and not one of these people had those
qualifications. Put simply, they were not qualified for the jobs advertised and they did not apply
for jobs for which they were qualified, but which were not immediately available. (Although
General Counsel Exhibit 20 indicates that that there were four people hired as field techs on
April 17, 2007, including Jose Castillo and Angel Rivera, the evidence and particularly the
testimony of Castillo and Rivera, indicates that April 17 was the starting date of their training in
New Jersey and that they had been interviewed and offered employment before April 13).
It is further noted that although some of these salts testified that they were willing to work
“for as long as it takes” to organize the Company, the testimony of Silva, who was responsible
for organizing this event, was that if they got jobs, it was intended that they work only between
two and four weeks. This was because the Union was going to subsidize the salts for the
difference between their normal pay and benefits as union employees and the pay and benefits
they would receive as Allstate employees. He testified that the Union could only afford to
subsidize these people for a short period of time.
Based on the evidence presented in this case, I conclude that the allegations that the
Company refused to offer employment or consider for employment this group of people, has no
merit and should be dismissed.
d. Prohibition on Wearing Union Clothing and
Using Union Decals on Hardhats
On May 30, 2007, starting at about 5:00 a.m., Castillo and Rivera, wearing union jackets,
engaged in leafleting to incoming employees at the Respondent’s Varick street facility. Before
this date, Castillo and Rivera had kept their union membership quiet and there is no evidence to
show that the Company was aware that they were union “salts.” There is also no credible
evidence to establish that the Company was aware that the other three persons selected for
layoff, (Jose Adames, Miguel Bisono, and Victor Vasquez), were union supporters.
According to Rivera and Castillo, after they went into the shop, they were told by Chris
Baran that they could not wear union t-shirts and jackets. Baran gave them shirts that had the
company name on them. Although Castillo went out to the field on his regular assignment,
Rivera, along with a number of other field techs was assigned to the shop. (In this regard, the
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evidence indicates that when field work is slow, the Company has typically assigned field
employees to do various tasks in the shop such as cleaning, arranging tools, etc.).
Castillo testified that when he returned to the shop on May 30th, he had a conversation
with Glen Burke about wearing union clothing and putting union decals on his hard hat. A
recording of this conversation is as follows:
You cannot have that jacket on.
Yes sir. Alright
You have defaced health and safety items, which we have given to you. It is against
company policy. I am writing you up for that.
For what?
Well for occurrences of any of the following violations because of its seriousness may
result in immediate dismissal without warning. Willful violation of security or safety rules
or failing to observe safety rules or AllState Power Vac safety practices, failure to wear
required safety equipment tampering with AllState equipment or safety equipment, which
you have done. You cannot do that because if something was to happen to you, these
manholes, they may look at that thin, the AllState Power Vac, they may go to Local 78
and you can die.
Why?
Because it was taught to you in our health and safety class.
Because it’s a sticker on the hardhat I will die?
You cannot have a sticker on the hardhat.
* * *
You cannot have a sticker on the hardhat… I am writing you up and giving you a safety
violation for this. You cannot wear this stuff during working yours, you cannot. If you
take it off right now…
Yeah I’ll take it off… no problem.
Just take it off and I won’t even write you - how, how’s that? Take it off then.
* * *
…[Y]ou cannot wear this stuff during working hours. You want to wear that jacket to and
from work, be my guest. Do I need to give you a sweatshirt to keep you warm during
work hours? I will give you one.
(Discussion of his size)
It’s a policy here… Here’s what happens. If you last here long enough, you can go
through certain types of training around here that you’ll be given stickers for. You may
go to certain plants that you’re allowed in and that just interferes with what you may get
down the line and it cannot be on that hard hat because it’s false information. We are
not members of Local 78 here and that’s what you’re doing. Do you understand what
I’m saying?
I’m a member of Local 78
Well… we’re not.
Well I am.
Alllstate Power Vac is not.
I am.
Well that’s you. Allstate Power Vac is not
Alright.
And even if we were that still would not be allowed on a hard hat. Understand what I’m
saying?
All right.
Let me get you a hat. You can wear these to your heart’s desire. All right my friend?
No problem.
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Before and after hours, you can wear whatever the hell you want around here.
All right. Anything else?
That’s it
All right cool. See you around man.
On June 1, 2007 the Company issued the following memorandum to its employees:
Effective immediately any authorized decals worn on company safety
equipment including hardhats are not authorized. Only training decals
issued by our customer and company certification can be worn. Violation
of defacing and tampering with company safety equipment is covered
under Allstate Power Vac standards of conduct. Any question concerning
any work or safety rule, please see your manager for explanation.
Rivera testified that on the morning of June 4, 2007, he was told by management to take
a union sticker off his hard hat and that he could lose his job if he didn’t do so. In light of the
above, I have no doubt that this conversation occurred as described by Rivera. Rivera received
a Notice of Safety violation for this incident.
With respect to the above, I conclude that the Respondent violated Section 8(a)(1) of the
Act. Absent special circumstances, prohibitions on employees from wearing union insignia at
work, violate the Act. Moreover, the burden of proof is on the Employer to justify such a
prohibition. Albertson’s Inc., 319 NLRB 93, 102 (1995); Mack’s Supermarkets, 288 NLRB 1082,
1092 (1988).
Burke testified that the placing of what were removable union decals on the company
issued hardhats constituted a safety issue. He opined that if an employee was hurt on the job,
any person who found him might be confused as to who the injured man was or who he worked
for. To me, this explanation simply makes no sense and I fail to see how the placement of a
union decal on a hardhat could conceivably be construed as a safety issue. (Presumably there
would be other ways to identify the person, such as the contents of his wallet).
By the same token, the Company’s attempt to prohibit Rivera and Castillo and other
employees from wearing clothing with union logos in the shop, coupled with threatened
discharge or discipline, is not justified. Even if such union clothing was worn out in the field, the
evidence is that when performing work in the field, the employees, for the most part, wear either
full or partial protective clothing that would largely obscure anything worn beneath. In short, in
the absence of evidence showing that the union insignia mocked or adversely portrayed the
Employer’s product, I conclude that the Respondent has not demonstrated that prohibiting either
the union decals on hardhats or the union logoed t-shirts, caps or jackets, was justified by
“special circumstances.” Cf. Noah’s New York Bagels, 324 NLRB 266, 275 (1997) and
Pathmark Stores Inc., 342 NLRB No. 31 (2004).
e. Other Events Between
May 30 to June 4, 2007
Between May 30 and June 4, Jose Rivera was involved in a number of other incidents,
some of which the General Counsels allege to be unlawful conduct by the Employer.
Rivera testified that on May 30, while working in the shop, he was told to first load and
then unload large plastic drums on a truck. He further states that he was then told to load and
unload these drums on two other occasions. The General Counsels contend that this heavy
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and useless work was designed to harass Rivera who had just declared himself as a union
supporter. Burke, for his part, claims that this series of transactions occurred because a
customer kept changing its mind about a job in the field.
The General Counsels also contend that the Respondent, in order to harass Rivera had
him dig, refill and then re-dig two holes in the yard. In this regard, Baran testified that the
Company had just ordered a new air conditioning unit that was going to be placed in the yard
outside the building and that he wanted to build a barrier to prevent trucks from banging into it.
To this end, Baran states that he had Rivera dig the holes to put some poles but that since Con
Edison called in emergency jobs, he told Rivera to cover the holes until the emergency jobs
were finished.
Rivera testified that later in the day, he answered his cell phone and was told by Burke
that he couldn’t use his cell phone in the shop because there were chemicals there that could
cause an explosion. As a consequence, Burke took Rivera’s cell phone and told him that he
could retrieve it at the end of the day. Burke concedes that he took away Rivera’s cell phone
but explains that because there are chemicals in the shop, the Company has a policy that
requires employees to use what they call “intrinsically safe phones,” which apparently are
phones sufficiently insulated to prevent sparking. While initially skeptical of this assertion, I note
that Rivera conceded that at the training session he attended before commencing work, he was
told that cell phones could produce electrical discharges that could cause explosions with the
chemicals that the employees worked with.
On or about Thursday, May 31, Rivera was told by Baran not to smoke and persisted
until told to punch out and go home. He received a warning for this. There seems to be some
confusion as to whether Rivera was smoking inside or outside the shop. (In New York, it is
illegal to smoke inside a work place). Castillo testified that he witnessed the event and that
Rivera was smoking next to the time clock in the shop. Baran, on the other hand, testified that
Rivera was smoking in the yard and that he told him to stop smoking and get back to work.
On June 4, Rivera arrived at work unshaven. He was told by the Company’s regional
safety manager, Kurtis Ross, that this was a violation of the Company’s safety rules and Rivera
was suspended after stating that because he was working in the shop, he didn’t have to shave.
In this regard, the Company does have a rule that required field workers to be clean shaven so
that a respirator will fit snugly on one’s face. Although Rivera asserted that he didn’t have to be
shaven because he was assigned to the shop, the fact is that people assigned to the shop may
have to go out on emergency calls. Given that situation, enforcing a rule that requires
employees, even those assigned to the shop, to be clean shaven is not unreasonable.
The General Counsels, in their brief allege only that the Employer violated the Act by
making Rivera load and unload barrels, making him dig holes, and temporarily taking away his
cell phone. They do not allege that the Respondent violated the Act in relation to the smoking
and the facial hair warnings.
One could easily conclude based in large measure on the fact that the alleged illegal
events occurred the day after Rivera revealed that he was a union supporter that these actions
were motivated by anti union considerations. On the other hand, the Employer had
explanations for each action, albeit reasons that were not particularly persuasive to me.
Nevertheless, the fact is that the three charged incidents affecting Rivera, all occurred
on a single day and were not particularly onerous. Moreover, as I am going to conclude that the
Employer illegally discharged Rivera on June 4, 2007, the remedy for that conduct will
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encompass any remedy that would relate to this conduct. Given the somewhat ambiguous
evidence regarding the motivation for these relatively minor actions on May 30, I am not going
to conclude that the Respondent violated the Act in these respects.
f. The June 4 Layoffs and Discharges
On June 4, 2007 the Company sent identical letters to Rivera, Castillo, Miguel Bisono,
Victor Vasquez and Jose Adames. This read:
Due to a temporary reduction in the workforce your employment will terminate today,
June 4, 2007. If you are enrolled in our medical plan we will continue your coverage
through July 31, 2007, providing that you continue to remit your current weekly portion of
the premium. If you are not recalled within the next two months, you may elect to
continue your coverage per the COBRA law. 3
By June 4, Castillo and Rivera had been employed for about a month and a half and
Victor Vasquez had been employed for about 7 days. However, Miguel Bisono and Jose
Adames had been employed as field techs since 2005. In the context of this company, which
has a high degree of turnover, Bisono and Adames were long term employees. And in this
regard, Burke testified that because the tech jobs are hard, dirty and not particularly well paid,
anyone who manages to last is highly valued.
The Company argues that these layoffs were required because Con Ed, its largest
customer, notified it that it was going to suspend a certain job until the fall. The Company does
not assert that the individuals were laid off because of their job performance. Simply put, the
Respondent asserts that they were laid off for lack of work and had Con Ed not given notice,
these employees would have continued working.
Miguel Bisono, Victor Vasquez and Jose Adames were all recalled to work on July 24,
2007. Rivera and Castillo were not.
Although Burke asserted that he had received notice from Con Ed about a week or two
before June 4, 2007, there is nothing in writing to corroborate this assertion and there was no
corroborating witness called by the Respondent to substantiate this claim.4 Nor is there any
evidence to show that the Company, prior to June 4, notified any employees, including Chris
Baran, that layoffs were either possible or immanent. In the latter regard, I particularly note that
Baran, as the operations manager who was in charge of daily scheduling, had a job that
required that he know who was or was not going to be available for work.
Burke concedes that during the entire five year period that he has been the manager,
there has never been a layoff. Thus, notwithstanding the assertion that this particular Con Ed
project was postponed because of the summer’s hot weather, there is nothing to show that
similar layoffs had occurred during any previous summers.

3 It is noted that the note does not explain why there was as temporary reduction in work.
4 The Respondent offered into evidence an e-mail to Burke from George Jacobi from Con Ed that
was sent in 2008. This asserted that there would be a postponement in June 2008 and that “just like the
prior years, we will be suspending the Transformer cleaning program for the Months of June, July and
August.” This document, which was sent a year after the June 4, 2007 layoffs is not contemporaneous
with those layoffs and constitutes, in my opinion, nothing more than uncorroborated hearsay regarding
the 2007 events.
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Moreover, the documentary evidence, (GC Exhibit 21), shows that on June 12 there
were five temporary workers assigned to the Varick street facility and that on June 14, there
were three temporary employees working out of this location. Thus, although the Company may
not have hired new permanent field technicians to replace the people laid off on June 4, the
evidence shows that it brought in a number of people after that date. (Actually, the temporary
workers came from New Jersey and were employed by a related company that has the same
ownership as Allstate).
Recalling that when the Union began its overt organizing campaign at the facility on May
30, 2007, that Rivera and Castillo handed out leaflets during that morning, and the fact that the
layoffs took place only four days later, this strongly suggests that the Company decided to
engage in these layoffs in order to get rid Rivera and Castillo and to put the fear of retaliation
into the remainder of the employees. Masland Industries, Inc., 311 NLRB 184 (1993); Detroit
Paneling Systems Inc., 330 NLRB 1170, 1171 (2000). Whether or not the Respondent was
aware that the other three employees were also involved in union activities is irrelevant if, as
concluded herein, the Company’s motivation in making the decision to lay off employees on
June 4 was to prevent its employees from joining or supporting the Union. Professional Eye
Care, 289 NLRB 1376, 1989-90 (1988).
Based on the above, it is my conclusion that the layoffs of Miguel Bisono, Victor
Vasquez and Jose Adames violated Section 8(a)(1) & (3) of the Act. I also conclude that Rivera
and Castillo were discharged, (not laid off), and that their discharges violated Section 8(a)(1) &
(3) of the Act.
g. The Discharge of Jose Adames
on October 1, 2007
As noted above, Jose Adames was a relatively long term employee who worked as a
field tech, a non-skilled laborers job. Adames had been one of the five people laid off on June
4, 2007 and he testified that he participated in handing out union literature after that date. He
was recalled on July 24, 2007.
In the meantime, the Union managed to obtain authorization cards from more employees
and this is shown by the fact that on August 30, 2007, it filed a representation petition. Also by
this time, and certainly no later than June 6, 2007, the Company retained labor counsel.
On September 17, 2007, the Company and the Union entered into a Stipulated Election
Agreement and an election was scheduled for October 5, 2007. In anticipation of the election,
company managers and supervisors were advised to be cautious in dealing with the employees.
Between June 4, and October 1, 2007, things seemed to be calm.
On September 7, 2007, Adames was given a company sponsored physical and was told
that he had high blood pressure. Adames was advised to see a doctor and on or about
September 14, 2007, he presented a doctor’s note in conjunction with a request for a 5 day
leave of absence. This was approved by Glen Burke and Adames received permission to take
off from September 17 to 21. Adames was scheduled to return to work on Monday, September
24.
According to Adames, on Sunday, September 16, (the day before his scheduled time
off), he received a phone call from the Dominican Republic informing him that his grandmother
had died. Adames states that he had his wife call Burke on the same day to explain the
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situation and he claims that Burke told his wife that he could take as much time off as he
needed. (Burke denies this and Adames’ wife did not testify). According to Adames, he
purchased a ticket and left on Monday, September 17, 2007.
Adames testified that when he arrived in the Dominican Republic he found out that his
grandmother had not died, but that she was gravely ill. He states that he decided to stay in that
country until after the expected funeral. He did not return to the United States until September
30, 2007.
Notwithstanding his testimony that he remained in telephone contact with his wife during
the time that he was in the Dominican Republic, neither Adames nor his wife initiated any
contact with the Company to report on his whereabouts or when he expected to return.
On the other hand, Burke testified that after not hearing from Adames, he called his
home on September 23 and September 26 in order to ascertain when Adames was going to
return to work. Burke testified that in both instances, Adames’ wife said that she did not where
Adames was or when he was returning to the United States. She did not testify.
By letter dated September 25, 2007, Linda Attridge notified Adames that; “if you do not
report to work by Thursday, September 27, 2007, we will terminate your emplacement as a
voluntary resignation.”
On Monday, October 1, 2007, Adames showed up at the Company and was told that
there was no work for him. On the following day, Adames again appeared and tried to proffer a
death certificate that had been faxed to him from the Dominican Republic on October 2. (This
stated that the date of death was September 21). This was rejected by Burke and company
president Galasso who told Adames that he should submit the death certificate to the Human
Resources Department in New Jersey. At one point, Galasso told Adames that unless he left
the premises, he would call the police. Adames did not send the death certificate to New Jersey
and made no further efforts to explain why he had not come back to work on September 24.
I suspect that Adames was caught up in a situation that he didn’t fully understand and
that his failure to notify the Company as to his whereabouts was a result of confusion on his
part. But, from the Company’s point of view, it had given Adames permission to leave and
expected him to return to work on September 24. When it became apparent to Burke and
Attridge that Adames could not be found and that the Company could not ascertain when he
would return to work, it was not unreasonable for them to consider that Adames had quit and
that a replacement would have to be found. This was not inconsistent with past practice and the
record shows that another employee, Michael Young, was also terminated in 2005, after having
failed to respond to Attrdige’s request to contact her regarding his absence. (See General
Counsel Exhibit 39).
On the basis of this record, I cannot conclude that the discharge of Adames was
motivated by his union activities or as a means to threaten other employees in anticipation of
the election that was scheduled to take place on October 5, 2007. Unfortunately for Mr.
Adames, he failed to contact the Company regarding his inability to return to work on time and
the company, as it had done in the past, chose to terminate his employment for this reason.
(Although no longer really relevant, this conclusion would mean that Adames was not eligible to
vote on October 5, 2007).
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h. The Transformer Event on October 5
The discharge of Rafael Bisono and the
suspensions of William Dominich and Hector Soler
The principal client of the Respondent is Con Ed. And one of the principal jobs that the
Respondent does for Con Ed is to clean transformers. Transformers are electrical devices that
convert high voltage electricity to lower voltage that is transmitted into homes and businesses.
There are thousands of these transformers throughout New York City and they are contained in
underground vaults accessed by manholes. They must be cleaned from time to time and to this
end, Con Ed contracts with the Respondent, which sends crews, usually consisting of a crew
foreman, a vacuum truck operator and a field technician. (The parties agree that although the
crew foremen do some work direction, they are not supervisors within the meaning of Section
2(11) of the Act.
Apart from being dirty work, there is a very remote, but real possibility that upon
removing the manhole cover and raising the cage entrance to the vault, this could generate an
electric spark that can maim or kill an individual standing at the open manhole or in the
immediate vicinity. Because of this possibility, both Con Ed crews and Respondent’s crews who
do this type of work are issued and required to wear protective gear that consists of hard hats,
steel toed shoes, long sleeved shirts and pants, protective gloves, a fire retardant outer garment
and safety glasses. 5 Additionally, to protect the public, the crew is required to put up cones and
tape so as to cordon off the area being accessed. These safety measures are regularly
monitored by both Con Ed people and by the Respondent’s managers.
On October 4, 2007, (the day before the election), Rafael Bisono, William Dominich and
Hector Soler were assigned to clean a transformer vault that was located a few blocks away
from the Company’s Varick street facility. When they first arrived at this location, the crew
members all donned protective clothing and started working. For some irrelevant reason, there
came a time during the morning when the crew went to check a second vault located on the
same block. Two of them opened the vault and raised the cage above ground. Then all three
stood around the open manhole and did so without putting on any protective gear or clothing.
At that point the three were caught standing by the opened transformer vault by Chris Baran
who happened to be passing by and who took some photographs. The pictures show the three
men standing around the open vault without any protection. Upon taking the photographs,
Baran retuned to the shop and reported the incident to his superiors. 6 Later in the day, the
three men were told that they were being suspended until further notice. According to Bisono,
he and Domenich were shown copies of the photographs by Al Guerrero when they returned to
the shop.

5 During the hearing, I suggested that either party could bring in an expert witness to give testimony
about the alleged dangers of doing work in or around a transformer vault. Both sides had plenty of time
to do this and ultimately, the Respondent brought in Matthew McFarland, a safety manager for Con Ed.
He confirmed that Con Ed crews and contractor crews are required to wear protective gear and clothing
when they opened a transformer vault because there was the danger of death or serious burn injuries
resulting from an electric spark. He testified that such people are required to wear protective clothing and
gear if they are in the immediate vicinity of an opened vault even if they were not going down into the
vault to do cleaning. Upon being shown the photographs taken by Baran, he opined that the three men
depicted were clearly breaching safety requirements, irrespective of why they opened the vault or what
they were going to do in it. In my opinion, McFarland’s testimony was credible and convincing.
6 Baran testified that the reason he did not immediately confront these men was because the election
was to be held the next day and he wanted to be extra cautious.
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Burke reported the incident to the Company’s Regional safety director, Kurtis Ross, and
he conducted a set of interviews with the three employees about a week after the election was
held. Soler was called in first, Dominich second and Rafael Bison was called in last. According
to Dominich, when Bisono came out, he appeared to be very frustrated and didn’t want to talk.
Dominich and Soler were called back to work on October 15, 2007, having been
suspended without pay since October 5. On the other hand, Bisono was discharged. With
respect to the difference, the Company asserts that during the interview, Bisono insisted that he
had done nothing wrong and that he didn’t need to be told how to do his job.
There is no question in my mind that the three employees breached safety procedures
by opening a transformer vault and standing around it without protective gear or clothing.
Unfortunately for them, they were captured by a camera and therefore had no means to deny
that they had transgressed company policy. The fact is that by being careless, the three
employees ran a remote but real risk of serious injury or death. Therefore, the Company’s
discipline for this was eminently reasonable and would have occurred in the absence of any
union activity. The suspensions of Dominich and Soler were, in my opinion, justified by the
circumstances and cannot said to have been motivated by union considerations. 7 Similarly,
while Bisono was treated more harshly, he indicated to the Company that he was not going to
change his ways.
In short, I conclude that neither the suspensions of Dominich and Soler, nor the
discharge of Rafael Bisono were motivated by anti-union considerations. I therefore
recommend that these allegations of the Complaint be dismissed.
i. The Discharge of Miguel Bisono
on December 12, 2007
Miguel Bisono is the brother of Rafael Bisono and he began his employment in January
2005 as a field technician. He testified that he first heard about the Union from Al Guerrera who
told him that AllState needed a union. At some point, Miguel Bisono attended a couple of union
meetings and after his layoff on June 4, 2007, he was active in supporting the Union. He states
that he obtained about 13 or 14 authorization cards from other employees. Although the
evidence doesn’t tend to show that the Employer was aware of Miguel Bisono’s union activity
before May 30, 2007, there is little doubt that it was aware that he was a union supporter after
June 4, 2007. As noted above, Miguel Bisono was recalled to work on July 24, 2007.
On December 12, 2007, Miguel Bisono was discharged and the Company asserts that
the reason related only to an event that occurred on December 6.
On December 6, 2007, Miguel Bisono, along with a group of other employees, was
assigned to work at a Con Ed generating station in Queens, New York. At about 11:00 a.m. the
employees went on a break and Bisono testified that he had to relieve himself. He states that
he returned to the truck, took an almost empty bottle from under one of the seats, urinated into it

7 The Company’s records indicates that in the past and prior to any union activity, other employees
have received disciplinary warnings, and in one case a suspension, for failing to wear protective gear.
The employees receiving such disciplines are Bill Kowalski, Narcizo Ailaca, Francisco Amarante, Ruby
Bratini and Charles Gervin. The records memorializing these disciplines are contained in General
Counsel Exhibit 56 and 59.
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and returned it to where it had been originally placed. Although acknowledging that he was
aware that there were bathroom facilities at the Con Ed plant, (no more than 90 to 100 feet
away), he nevertheless chose to pee in the bottle. He explains that the bathroom was farther
away than the truck and that he had to unzip his protective outer garment. (Presumably, he had
to unzip the garment whether he went to the bathroom or to the truck).
In any event, it turns out that bottle happened to belong to Melvin Brown and it was not
quite empty when he left it under the seat. And when Brown returned to the truck and
attempted to get a drink, he discovered that there was urine in his bottle and he became very
angry. Brown confronted Bisono and employees Cesar and Arroyo and stated that whoever did
this was “going to have a problem with me right now.” All three denied that they had anything to
do with Brown’s bottle. Brown then reported the incident to field supervisor Michael
Rademaker, who in turn reported it to the office. Brown did not return to the office in the same
truck as the other employees.
According to Bisono, he first spoke to Guerrero when he returned to the office and he
asserts that he met with Al Guerrera and Chris Baran. According to Bisono, when questioned
about the incident, he told Guerrera, in Spanish, that he was the one who urinated in the bottle
and that Guerrera told him not to say anything and wait till the investigation was finished. In any
event, Bisono, through Guerrera told Baran that he did not urinate in Melvin Brown’s bottle.
On the following day, Kurtis Ross arrived at the facility to conduct an investigation. He
conducted interviews with Brown, Bisono, Arroyo and Bratini. Although Ross did not make
recordings of these interviews, he did make extensive notes.
When Bisono was interviewed, he denied to Ross that he peed in the bottle. He also
testified that during the meeting, Baran asked if he was using his cell phone to record the
meeting and Ross said that if he was, that it didn’t matter.
When Bratini was interviewed, he was asked who urinated in the bottle and Bratini
fingered Bisono.
At the conclusion of the interviews, Bisono was told to go home and call in to see if he
was assigned to any work. He did so on Monday, Tuesday and Wednesday. He was not
assigned and on Wednesday, he was told by Guerrera that the Company no longer needed him.
On December 12, 2007, the Company sent a letter to Bisono stating: “Effective December 12,
2007, your position with Allstate… has been terminated for gross misconduct….”
The bottom line is that Bisono admittedly urinated into the juice bottle of another
employee who got upset and reported this to management. When confronted with this by Chris
Baran and later by Kurtis Ross, Bisono denied that he had done so. Notwithstanding his
denials, Bratini told Ross that Bisono was the culprit and Ross decided to discharge Bisono for
this conduct.
Notwithstanding the General Counsel’s attempt to minimize this incident, it is my opinion
that Bisono, for whatever reason, engaged in what can only be described as disgusting conduct
that outraged a fellow employee. Given these facts, I cannot conclude that his discharge was
motivated by union considerations and I conclude that he was discharged for cause.
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Conclusions of Law
1. By discharging Jose Castillo and Angel Rivera because of their membership in
Laborers International Union of North America, Local 78, the Respondent has violated Section
8(a)(1) & (3) of the Act.
2. By laying off Jose Adames, Miguel Bisono and Victor Vasquez in order to discourage
employees from joining or supporting Laborers International Union of North America, Local 78,
the Respondent has violated Section 8(a)(1) & (3) of the Act.
3. By prohibiting employees from wearing union decals on their hard hats or wearing
union t-shirts, hats or jackets, the Respondent has violated Section 8(a) (1) of the Act.
The Respondent has not violated the Act in any other manner encompassed by the
Complaint.
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.
I have concluded that the Respondent illegally laid off Jose Adames, Miguel Bisono and
Victor Vasquez. However as they were recalled to work on July 24, 2007, I shall not require the
Respondent to reoffer them reinstatement. To the extent that they suffered any loss of earnings
during the period of their layoffs, I shall recommend that they be made whole, for any loss of
earnings and other benefits, computed on a quarterly basis from the date of their layoffs, 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). 8
In the case of Angel Rivera and Jose Castillo I shall recommend that no reinstatement
order be issued. I also conclude that neither would be entitled to any backpay. At the time these
individuals were hired, the intent of the Union, as expressed by Silva, was that any “salts” hired
would work only for a period of two to four weeks. Both Rivera and Castillo were members of
the Union and both before and immediately after their discharges on June 4, obtained other
employment at substantially higher wage rates. There is no doubt that neither man intended to
work for the Respondent on a permanent basis or even on an extended temporary basis. And
after they were discharged they suffered no loss of earnings or benefits.

8 According to Miguel Bisono, he was paid by the Union at $22 per hour plus health insurance
benefits during the period of his layoff. I assume that the Union made the same arrangement with the
other people who were laid off.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 9
ORDER
The Respondent, Allstate Power Vac Inc., its officers, agents, and representatives, shall
1. Cease and desist from
(a) Discharging or laying off employees because of their membership in or support for
Laborers International Union of North America, Local 78.
(b) Prohibiting employees from using or wearing union decals on their hard hats or
wearing union t-shirts, hats or jackets. However, this does not preclude the employer from
requiring its employees to wear appropriate protective clothing when necessitated by their work
assignments.
(c) In any like or related manner, interfering with, restraining or coercing employees in
the rights guaranteed to 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 make whole Jose Adames, Miguel
Bisono and Victor Vasquez 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 this decision.
(b) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful layoffs and discharges of Jose Adames, Miguel Bisono, Victor Vasquez, Angel Rivera
and Jose Castillo and within three days thereafter, notify them in writing, that this has been done
and that the layoffs will not be used against them in any way.
(c) 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.
(d) Within 14 days after service by the Region, post at its facilities in Brooklyn, New
York, copies of the attached notice marked “Appendix.” 10 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to

9 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.
10 If this Order is enforced by a Judgment of the 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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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. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, or sold the business or the facilities involved
herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondents at any time since May
30, 2007.
(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 complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. August 11, 2008
_____________________
Raymond P. Green
Administrative Law Judge
JD(NY)–30–08
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 the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT discharge or layoff employees because of their membership or support for Laborers
International Union of North America, Local 7or any other labor organization.
WE WILL NOT prohibit our employees from using or wearing union decals on their hard hats or wearing
union t-shirts, hats or jackets. However, this does not preclude the employer from requiring employees to
wear appropriate protective clothing, including long sleeved shirts, when necessitated by their work
assignments.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the rights
guaranteed to them by Section 7 of the Act.
WE WILL make whole Jose Adames, Miguel Bisono and Victor Vasquez, for any loss of earnings they
may have suffered as a result of the discrimination against them.
WE WILL remove from our files any reference to the unlawful layoffs and discharges of Jose Adames,
Miguel Bisono, Victor Vasquez, Angel Rivera and Jose Castillo and notify them in writing that this has
been done and that these actions will not be used against them in any way.
ALLSTATE POWER VAC, INC.
(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.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
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, 718-330-2862.