A.M. Ortega Construction, Inc.

National Labor Relations Board - Board Decisions

May 21, 2007

349 N.L.R.B. 1111 (N.L.R.B. 2007)

A.M. ORTEGA CONSTRUCTION
349 NLRB No. 105
1111
A.M. Ortega Construction, Inc. and Southern Cali-
fornia District Council of Laborers, and its af-
filiated Locals, Laborers International Union of
North America.
A.M. Ortega Construction, Inc. and International
Union of Operating Engineers, Local 12; United
Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada, Local Union 250;
Southern California District Council of Labor-
ers, Laborers’ International Union of North
America (LIUNA) and its affiliated Locals;
Teamsters Joint Council No. 42, affiliated with
the International Brotherhood of Teamsters;
and General Teamsters and Food Processing
Local 87, affiliated with the International Broth-
erhood of Teamsters and International Brother-
hood of Electrical Workers, Local 47, AFL–
CIO, CLC. Cases 21–CA–37055, 21–CA–37167,
and 21–RC–20823
May 21, 2007
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On November 16, 2006, Administrative Law Judge
William G. Kocol issued the attached decision. The
General Counsel and Charging Party each filed excep-
tions and a supporting brief. The Respondent filed cross-
exceptions and a supporting brief, and answering briefs
to the General Counsel’s and Charging Party’s excep-
tions. The General Counsel and the Charging Party each
filed an answering brief to the Respondent’s cross-
exceptions, and the General Counsel filed a reply brief to
the Respondent’s answer.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,1

1 The General Counsel excepts to the judge’s failure to provide for
notices to employees in both Spanish and English in the recommended
Order. The Respondent does not oppose this request, which appears to
be warranted. Thus, we shall order that the notice be posted in Spanish
as well as in English. Bergensons Property Services, 338 NLRB 883
(2003); Three Sisters Sportswear Co., 312 NLRB 853 (1993), enfd. 55
F.3d 684 (D.C. Cir. 1995). Member Kirsanow concurs in granting the
General Counsel’s request on the sole ground that the Respondent does
not oppose it.
In addition, it appears that the judge inadvertently ordered the Re-
spondent to post the notices at its Riverside, California facility. How-
ever, the election in this case, as well as the objectionable and unlawful
conduct at issue, occurred at the Respondent’s Lakeside, California
findings,2 and conclusions and to adopt the recom-
mended Order as modified and finds that the election
must be set aside and a new election held.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, A.M.
Ortega Construction, Inc., Lakeside, California, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Telling employees that they should quit if they
support the Joint Petitioners, International Union of Op-
erating Engineers, Local 12; United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local Union
250; Southern California District Council of Laborers,
Laborers’ International Union of North America
(LIUNA) and its affiliated Locals; Teamsters Joint
Council No. 42, affiliated with the International Brother-
hood of Teamsters; and General Teamsters and Food

facility. Accordingly, we have modified the recommended Order to
ensure that notices are posted at the appropriate facility. We have also
modified the recommended Order to conform to the Board’s standard
remedial language, and we have substituted a new notice.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s dismissal of the 8(a)(3) allegation that the
Respondent unlawfully refused to recall employees George Marquez
and Steven Pasos, Member Walsh finds that, assuming the General
Counsel met its burden of establishing that animus was a motivating
factor in the Respondent’s decision, the Respondent also met its burden
by showing that it would not have recalled Marquez or Pasos in any
event because they did not telephone the Respondent to seek employ-
ment.
3 The election in this case was held on September 21, 2005, pursuant
to a Stipulated Election Agreement. The tally of ballots shows 17 votes
for the Joint Petitioners, 21 votes for the Intervenors, and no employees
voting against representation, with three nondeterminative challenged
ballots.
In the absence of exceptions, we adopt pro forma the judge’s over-
ruling of the Joint Petitioners’ objection alleging that the Respondent
engaged in objectionable conduct by granting preferential access to the
Intervenor. Further, there were no exceptions to the judge’s findings
that the Respondent violated Sec. 8(a)(1) by telling employees they
should quit if they supported the Joint Petitioners, telling employees
that it would be futile for them to support the Joint Petitioners, threaten-
ing employees that they would be fired because they support the Joint
Petitioners, and threatening employees that it would close its doors
rather than sign a contract with the Joint Petitioners. Finally, there
were no exceptions to the judge’s dismissal of the allegation that the
Respondent violated the Act by interrogating employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1112
Processing Local 87, affiliated with the International
Brotherhood of Teamsters.”
2. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its facility in Lakeside, California, copies of the attached
notice marked “Appendix”4 in both English and Spanish.
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent’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 no-
tices 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, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since August 26, 2005.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
[Direction of Second Election omitted from publication.]
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell employees that they should quit if
they support the Joint Petitioners, International Union of
Operating Engineers, Local 12; United Association 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, Local
Union 250; Southern California District Council of La-
borers, Laborers’ International Union of North America
(LIUNA) and its Affiliated Locals; Teamsters Joint
Council No. 42, affiliated with the International Brother-
hood of Teamsters; and General Teamsters and Food
Processing Local 87, affiliated with the International
Brotherhood of Teamsters.
WE WILL NOT tell employees that it would be futile for
them to support the Joint Petitioners.
WE WILL NOT threaten to fire employees because they
support the Joint Petitioners.
WE WILL NOT threaten to close our doors rather than
sign a contract with the Joint Petitioners.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
A.M. ORTEGA CONSTRUCTION, INC.
Alan L. Wu, Esq., for the General Counsel and Regional Direc-
tor.
Richard M. Freeman, Esq., Carole M. Ross Esq., and David
Chidlaw, Esq. (Sheppard, Mullin, Richter & Hampton
LLP), of San Diego, California, for the Respondent and
Employer.
Steven T. Nutter, Esq. (Reich, Adell, Crost & Cvitan), of Los
Angeles, California, and David Koppelman, Esq., of Pasa-
dena, California, for the Charging Party and Joint Petition-
ers.
Bernhard Rorhbacher, Esq. (Rothner, Segall, & Greenstone),
of Pasadena, California, for the Intervenor.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in San Diego, California, on June 26–28, and August
7, 2006. The charges were filed on October 18, 2005,1 and
January 31, 2006, and the order consolidating cases, consoli-
dated complaint and notice of hearing was issued on February
28, 2006. The complaint alleges that A.M. Ortega Construc-
tion, Inc. (Respondent) failed to recall Steven Pasos Jr., from
layoff and then terminated his employment because he engaged
in union activity and because he testified in a representation
case hearing, failed to recall George M. Marquez from layoff
because he engaged in union activity, threatened an employee
that the employee would be one of the first to be out of work if
the International Brotherhood of Electrical Workers, Local 47,
AFL–CIO, CLC (Local 47) won a representation election, told
employees that if they supported the Joint Petitioners (Local
89) they should quit and go to work for a company whose
workers were represented by those unions, and told employees
it would be futile to support the Joint Petitioners because Re-

1 All dates are in 2005, unless otherwise indicated.
A.M. ORTEGA CONSTRUCTION 1113
spondent would never sign a collective-bargaining agreement
with them, or it might take up to 1 year to sign a collective-
bargaining agreement. Respondent filed an answer that denied
the substantive allegations of the complaint.
A representation case is consolidated with the complaint.
The Joint Petitioners filed the petition on April 19, the parties
signed a stipulated election agreement on August 17, and the
election, held on September 21, showed that 17 employees
voted for the Joint Petitioners, 21 employees voted for Local
47, and no employees voted against union representation.
There were four challenged ballots, but at the hearing in this
case the parties stipulated that one of the challenged voters,
Oscar Ruvalcaba, was a supervisor and therefore the challenge
to his ballot should be sustained. As a result, the number of
challenged ballots is no longer determinative and the remaining
challenges need not be resolved. The Joint Petitioners filed 17
separate objections to the conduct of the election. The Re-
gional Director referred 14 of the 17 to hearing. In their brief
the Joint Petitioners withdrew four more objections. Some of
the objections mirror the allegations in the complaint. The
remaining objections that warrant discussion concern a grant of
substantial wage increases to unit employee a week before the
election and granting Local 47 preferential access to employees
on its property and on working time.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent,2 Joint Petitioners, and
Local 47, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, performs dry underground utili-
ties installation in the construction industry from its facility in
Lakeside, California, where it annually purchases and receives
goods valued in excess of $50,000 directly from points outside
the State of California. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I also find that the Joint Peti-
tioners and Local 47 are labor organizations within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT
A. Background
As indicated, Respondent is in the business of dry under-
ground utilities installation and has been in business for about
32 years. It has facilities in San Diego and Riverside and em-
ploys laborers, equipment operators, and truckdrivers in crews
headed by a foreman. Local 47 and its predecessors have rep-
resented certain employees of Respondent since 1993. The

2 After briefs were received Respondent filed a motion to file a reply
to the General Counsel’s brief; the General Counsel filed an opposition
to Respondent’s motion. Reply briefs are not normally allowed at this
stage in the proceedings, Sec. 102.42 of the Board’s Rules and Regula-
tions. Respondent has not pointed to any special need to deviate from
the normal practice. Accordingly, Respondent’s motion to file a reply
brief is denied.
most recent contract between these parties runs from December
1, 2002, through November 30, 2005. Since 2005, about 95
percent of the work Respondent does is conversion work. This
is work done on already developed land with existing roads and
utilities. Conversion work requires a higher skill level than
developer work, which is done on undeveloped land. The Riv-
erside facility is a 1 acre, fenced-in yard where the foremen
may go on a daily basis to pick up their trucks and material
before they go to a jobsite. Most employees, however, go di-
rectly to the jobsite. Maurice Ortega is acting president; he
estimates projects and oversees the operation of the San Diego
facility. Jose Flores is vice president; he is involved in sales
and customer relations. Alberto Carrillo is superintendent; he
assigns work, layoffs, and recalls employees. David Hicksman
is supervisor, and Oswald “Ozzie” Ruvalcaba is a foreman.
Ruvalcaba is Flores’ son-in-law. All of these persons are ad-
mitted agents of Respondent. Respondent employs several
other foremen besides Ruvalcaba; all foremen expected to vote
in the election and employees knew this.
As indicated, the complaint case centers on allegations that
Respondent unlawfully failed to recall Marquez and Pasos from
layoff. Respondent does not have a formal layoff or recall
policy. As work diminishes employees are laid off based on
need and the skill level of employees. The layoffs may range
from a day or two to much longer periods of time. Likewise,
employees are called back to work based on Respondent’s
needs and the skill level of the employees. Respondent is free
to, and has, hired new employees rather than recall existing
employees from layoff. But as Carillo stated, he generally tries
to recall all laid off employees. Carillo has told laid off work-
ers that the best way to get work is to show up in the morning
because often employees call in sick or a foreman forgets to tell
him that another worker is needed on the site. He testified that
even after employees were terminated they remained eligible to
return to work. Respondent pays its employees a required
minimum but grants raises based on merit.
Respondent’s main customer is San Diego Gas and Electric.
On December 16, 2004, the Public Utilities Commission of the
State of California issued a ruling requiring utilities such as
SDG&E to ensure the payment of prevailing wages by their
construction contractors such as Respondent.3 One of the mes-
sages that Local 89 would later communicate to workers during
the election campaign was that Respondent should be paying
them the higher prevailing rates. On January 11, 2005,
SDG&E sent a letter to Respondent and others advising that
pursuant to the PUC decision contractors were required to pay
employees who work on energy utility construction projects
prevailing wages as set by the State of California Department
of Industrial Relations. The letter directed the contractors to a
DIR website for more information. But uncertainty remained
about what the prevailing wages should be and SDG&E left it
to the contractors like Respondent to resolve that matter. On

3 On June 26, 2006, after the representation election in this case, the
California Court of Appeals annulled that portion of the PUC’s ruling
at issue in this case. In their brief the Joint Petitioners indicate that the
California Supreme Court denied a request to review the lower court’s
decision on September 13, 2006.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
about January 20, SDG&E sent Respondent an amendment to
their existing contract that required Respondent to pay its em-
ployees prevailing wages. The amendment was to be effective
December 16, 2004. Apparently Respondent reported to
SDG&E that it never received the amendment, so on March 8
SDG&E sent another copy although Flores testified Respondent
had received the amendment by February 15. The amendment
was eventually signed by both parties, but it is undated. In an
e-mail message March 22, Flores conceded that Respondent
was not paying the prevailing rates and that it needed to “re-
submit rates based on published prevailing rates, i.e., Operating
Engineer’s Rates; Laborers Local 89 Rates; Teamsters Local 5
Rates.” Meanwhile, Respondent continued to try and learn
exactly what the prevailing rates were that it was expected to
pay. For example, on July 28, Respondent sent a message to
the California Department of Industrial Relations, Prevailing
Wage Unit, seeking that information but it did not receive a
reply. On September 12, Respondent’s counsel sent a letter to
the Department of Industrial Relations. The letter disclosed
that Respondent was dealing with a situation involving Local
47 and the Joint Petitioners and was attempting to ascertain the
correct prevailing wages to pay its employees. The letter pro-
vided details of the work performed by Respondent and re-
ferred to a contract involving Electrical Workers Local 569.
The letter asked the DIR to confirm that the wages set in that
contract were the prevailing wages; it indicated that Local 47
agreed that the Local 569 contract set forth the prevailing rates.
The DIR responded on October 4 indicating that it would not
enforce the PUC order but rather would leave it to the PUC to
enforce its own order. In other words, the DIR said it would
not set prevailing wage rates under the PUC ruling.
According to Ortega a number of employees had complained
that they preferred Respondent’s old health insurance provided
by Kaiser to the health insurance provided under the collective-
bargaining agreement with Local 47. In about December 2004,
Ortega called Tom Brown, Local 47’s negotiator, and asked if
Respondent could provide its own health care coverage. Ac-
cording to Ortega, Brown said that he thought that could be
done and he would look into it. Ortega and Flores met with
Brown in about January 2005. At that meeting Brown gave
Ortega and Flores a draft proposed new contract to run from
January 1, 2005, through December 31, 2007. It should be
recalled that the parties already had an existing agreement
through November 30. That draft proposal provided for sub-
stantial wage increases to be effective January 1, 2005. Brown
explained that the new wage rates were more in line with the
prevailing wage rates. The draft proposal was generally ac-
ceptable to Ortega and Flores except for the health insurance;
they continued to insist on providing the unit employees with
the Kaiser coverage. No final agreement was reached at that
point. Ortega called Brown several times after the meeting to
follow up on the health insurance issue. Brown was trying to
get Local 47 to agree but the concern was that Respondent
needed to spend the same amount on any replacement health
insurance as it spent for the contractual health insurance or else
pass on any savings to the employees.
According to Ortega, the next meeting occurred at Respon-
dent’s counsel’s office. Ortega, Flores, and Richard Freeman,
Respondent’s counsel, were present for Respondent; Brown
and Pat Lavin, business manager, were present for Local 47.
No agreement was reached at that time. At some point thereaf-
ter the Union agreed that Respondent could revert back to its
Kaiser health insurance plan. There is some testimony that an
agreement was signed in September between Respondent and
Local 47 as a substitute for the existing contract, but no signed
contract is in evidence and I am unable to conclude based on
this record when or whether that contract was signed.
B. Events Before the Election
Jonathan Osorno worked for Respondent as a laborer and
pipe layer from August 2004, to mid-June 2005, at which time
he quit and started working for an employer whose employees
were represented by Local 89. While still employed by Re-
spondent, Osorno attended meetings held by Local 89 about
once a week. Local 89 had invited the foremen to attend the
meetings and Osorno saw Ruvalcaba at the meetings about four
or five times. About a month before the election Ruvalcaba
and he were driving together to a jobsite when Ruvalcaba said
that the election was coming up and asked what union Osorno
was supporting. Osorno replied that he was supporting Local
89. Ruvalcaba said that he was supporting Local 47. Ruval-
caba unconvincingly denied making these remarks. Osorno, on
the other hand, impressed me as a credible witness in this in-
stance and other instances described below.
An issue raised by the objections concerns whether Respon-
dent granted Local 47 preferential access to its property to meet
with employees on paid time. Brandon Jones worked as an
operator for Respondent from January 2003, until mid-June
2006. According to Osorno and Jones, their foremen told them
that there would be a meeting held in Respondent’s yard begin-
ning at 7 a.m., the employees’ normal starting time. The meet-
ing occurred on August 26, unit employees attended this meet-
ing, and it lasted about an hour. The employees were paid for
this time. Representatives from Local 47 were there, including
Business Manager Pat Lavin, Senior Assistant Business Man-
ager Chet Bennett, and Organizer Richard Garcia. They told
the employees of a contract that Local 47 and Respondent had
agreed upon and that would be applied to them if they voted for
Local 47 in the election. They handed out copies of a portion
of the purported agreement. At that time Osorno was making
$17 per hour; according to the contract he would be getting
$21.33 per hour. Jones was making $23 per hour; under the
contract he would receive $31. During the meeting the Local
47 representatives said that the health insurance would be
switched back to Kaiser. This was viewed by employees as an
improvement because there was dissatisfaction with their exist-
ing health care plan. As a result of the switch $1.37 per hour
was saved; the Local 47 representatives explained that the em-
ployees could choose to receive that as pay or apply it towards
a vacation fund or a 401(k) plan. Flores was about 50 feet
away from the meeting area.
The facts in the preceding paragraph are based on the credi-
ble and mutually corroborative testimony of Osorno and Jones.
Ruvalcaba attended this meeting. Although Ruvalcaba’s recol-
lection of the details of this meeting was hazy, he in general
corroborated the testimony of Osorno and Jones except that he
A.M. ORTEGA CONSTRUCTION 1115
testified that the Local 47 representatives said that they would
try and obtain the benefits for the employees rather than indi-
cating that the employees would receive the benefits. Concern-
ing the time of the meeting, Ruvalcaba initially testified that the
meeting started somewhere around 7 a.m. But later when ques-
tioned by Respondent’s counsel he testified that the meeting
started between 6 and 7 a.m. and that it was before the workday
started. I credit the testimony of Osorno and Jones when it
conflicts with Ruvalcaba’s shifting testimony concerning this
meeting. Garcia testified that he arrived at the facility around
5:45 a.m. He then said he arrived around 5:30 a.m. and that the
meeting began around 6 a.m. after the employees arrived. Gar-
cia testified that the meeting lasted about 30 minutes, but then
said it lasted 35–40 minutes at the most and that all the Local
47 representatives left the yard before 7 a.m. Garcia denied
that he or the other Local 47 representatives ever told the em-
ployees that Local 47 had a new signed contract with Respon-
dent. When workers asked if the wages in the proposed con-
tract would be the wages that the employees would receive,
Garcia claims that they were told that it would be decided in
negotiations with Respondent. But earlier in his testimony
Garcia was asked whether the papers shown to employees rep-
resented what the employees would get if they voted for Local
47, Garcia answered, “yes.” Garcia impressed me as someone
testifying in a manner consistent with a stated position rather
than relating the facts; I give it little weight. Lavin testified that
he told the employees that these were the types of benefits and
wages that they were trying to get in a contract with Ortega.
Ortega testified that he never allowed Local 47 to come on
Respondent’s property and meet with employees on working
time. He claimed that Local 47 began its meeting with em-
ployees at the yard at 6 a.m., but when asked whether he saw
Local 47 making a presentation to employees after 7 a.m. Or-
tega stated, “I don’t believe so.” Vice President Flores testified
that he arrived at the yard around 6:15 a.m. and the meeting
between Local 47 and the employees had already begun. Flores
testified that the meeting ended around 7 a.m. Neither Flores
nor Ortega were convincing concerning the time the meeting
began. Finally, David Vincent Hitzeman has worked for Re-
spondent for 24 years; for the last 13 years he has worked as a
foreman. Hitzeman testified concerning a meeting that started
at 6 a.m. and lasted 15–20 minutes. He testified that he was not
paid for this time. But Hitzeman testified that Garcia arrived
there about 6:05 a.m., introduced himself as the new represen-
tative, and gave out his business card. Hitzeman asked Garcia
when they would start getting the prevailing wage and Garcia
said he did not know but would get back to him. I conclude
that Hitzeman’s testimony was not about the meeting described
above but rather concerned another encounter with Garcia, who
frequently visited the area near the facility in the morning.
After the meeting with Local 47 representatives described,
Osorno was talking to his foreman when Vice President Flores
joined them. After Osorno and his foreman finished their con-
versation, Flores said that if the workers wanted to go into Lo-
cal 89 so badly, why didn’t they just quit the company and go
to work for a company that had Local 89. Osorno then took his
tools and left for a jobsite. Flores testified that he did not know
who Osorno was until shortly before the hearing. Flores did
not recall speaking with Osorno about Osorno’s preference for
a particular labor organization. He also did not recall speaking
with Osorno on the day of the meeting. I again credit Osorno’s
testimony; his testimony was specific in detail. Flores’ testi-
mony was uncertain and unconvincing.
Continuing on with the claim of unequal access, on August
25, Local 89 sent Respondent a letter indicating that it had
learned that Local 47 had been granted access to Respondent’s
property to speak to employees during working and nonwork-
ing time. Local 89 requested the same access. On August 30,
Respondent replied by letter claiming that it had allowed Local
47 access on August 26 from 6 to 7 a.m. “off the clock” to em-
ployees who voluntarily decided to attend. Respondent said
that it would allow Local 89 the same access on September 2.
On August 31, Local 89 wrote back that Respondent was incor-
rect in claiming that Local 47 had been granted access during
nonworking time but that Local 89 would nonetheless meet
with employees at the time offered in the earlier letter. Local
89 closed by stating that Respondent should notify its employ-
ees of the September 2 meeting as soon as possible. On Sep-
tember 2, Ortega testified that he arrived about 5:30 a.m. and
noticed Cruz in the yard. He told Cruz not to come onto the
property until 6 a.m. and to leave the property at 7 a.m. How-
ever, according to Juan Cruz, an organizer, after Local 89’s
representatives arrived on September 2, Ortega told them that
they needed to stay outside the property until 7 a.m. At 7 a.m.
they went on the site and spoke to about 10–12 employees who
were there. Moreover, Jones testified that this meeting too
started at 7 a.m. and he was paid for the time. In sum, the letter
and Ortega’s testimony indicate that the meeting occurred be-
fore working time, but the testimony from Local 89 and an
employee supporter claim that their meeting occurred on work-
ing time. I explain my resolution of this issue below.
About a week before the election Ruvalcaba asked Jones
about the meeting the night before with Local 89. After Jones
told him what had happened Ruvalcaba said it was the same
stuff that Local 89 was always saying. Ruvalcaba said that
Ortega would never sign a contract with Local 89 and that Or-
tega would rather close his doors than sign a contract with Lo-
cal 89. He said that it could take up to a year before Ortega
signed the contract. Ruvalcaba said that the employees should
just take the contract that Ortega had already signed with Local
47. Ruvalcaba accused Jones of telling employees that Ruval-
caba was spreading misinformation concerning what Ortega
would do; Jones denied that. Ruvalcaba then said that Jones
would “be one of the first fucking ones to go.” Ruvalcaba was
speaking loudly and appeared to be angry. Ruvalcaba testified
that the employees, including Jones, were talking how they
would make more money with Local 89 as their representative.
Ruvalcaba claims that he told them if everyone would be mak-
ing more money with Local 89 then Ortega would have to bid
his jobs higher because the employees were making more
money and that the employees might be then sitting at home.
Ruvalcaba testified that Jones became upset and started cursing
and he did not continue to talk to Jones because Jones looked
like he was getting aggressive. I credit Jones’ testimony over
Ruvalcaba’s. Jones’ demeanor was sincere; Ruvalcaba ap-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
peared to be calculating his testimony to avoid crossing the line
into illegality.
Normally employees receive their paychecks first thing Fri-
day morning at the jobsites from the foremen. It will be re-
called that Respondent was attempting to ascertain precisely
what the prevailing wages were that it should pay its employees
and had been meeting with Local 47 to discuss a new contract.
That new contract was not to succeed the existing contract set
to expire November 30, but to supersede the existing contract.
On September 14, a week before the election, Ortega accompa-
nied by Flores and Albert Carillo visited the jobsites and deliv-
ered the paychecks to the employees. This was the first time
that Ortega had gone to the jobsites to hand out paychecks.
When they arrived at the site where Osorno was working they
told the employees to take a break. Ortega explained that the
reason there was a delay in handing out the checks that day was
because he had to get authorization to adjust the wage rates that
the employees were getting. Ortega said that there was an elec-
tion coming up and he had his reasons why he did not like Lo-
cal 89 and why he was in favor of Local 47 and if the employ-
ees wanted to discuss it further with him they could go to his
office and talk about it. Osorno’s paycheck showed that he
received a pay increase from $17 to $21.33 per hour. Jones’
wage rate increased from $23 to $31 per hour. The other unit
employees also received pay increases ranging from $1.33 to
$11.33 per hour. Osorno asked Ortega if this was the scale they
would be getting if they voted for Local 47 and Ortega said yes.
Osorno asked if a vision plan was included in the health care
package that they would be receiving; Ortega asked Flores who
answered yes. Ortega said that they would be switching health
insurance carriers to Kaiser and that the $1.37 per hour that
Respondent saved from the switch could be put into a vacation
fund or put into their paychecks. The foregoing facts are again
based on the credible testimony of Osorno and Jones. Ruval-
caba admitted that Ortega and Flores came to the jobsite and
delivered the paychecks, but he claimed he was unable to recall
what they said because he was too busy. His wage rate rose
from about $20 to about $32 per hour. Ortega testified that
after the new contract was signed with Local 89 he, Flores, and
Carillo visited the jobsites, handed out the paychecks and told
the employees about the new contract. Ortega specifically told
them about the new wage rates and the new health insurance
plan reverted to Kaiser.
At a meeting held the day before the election, Ruvalcaba told
some employees that he did not want to go into Local 89 be-
cause he did not know how long it would take for Ortega to
sign a contract and he did not want to be short of work, so he
thought that Local 47 was the safest way to go for him. Ruval-
caba said that he wasn’t sure if there would be work for at least
a year. According to Osorno, Ruvalcaba was sitting at a table
with a copy of a Local 89 contract and slammed his hand on the
table and was speaking loudly. Ruvalcaba denied making these
remarks or slamming his hands on the table. I again credit
Osorno’s testimony over Ruvalcaba’s.
C. George Marquez and Steven Pasos
George Michael Marquez had worked for Respondent on and
off since 2001. He was hired as a foreman but later worked as
an operator. Most recently he made $18 per hour, the lowest
rate among Respondent’s operators. Marquez attended four or
five meetings held by Local 89 and spoke at these meetings
about his failure to get health insurance and low wages. Re-
spondent’s foremen, including Ruvalcaba, attended those meet-
ings. Marquez wore a Local 89 baseball cap at work. On about
August 1, Marquez was laid off. Other employees were laid off
at the same time and there is no contention that Marquez’ layoff
was unlawful. On August 5, Marquez began working for an-
other employer at the rate of $41 per hour. As explained be-
low, an issue in this case is whether Marquez called Respon-
dent after the layoff to seek work. Marquez testified that he
called in regularly to see if there was work for him but he only
was able to reach Carillo’s voice recording so Marquez left
messages. Carillo testified he did not recall getting voice mes-
sages from Marquez that indicated “a desire to work.” Carillo’s
mobile telephone records do not show any calls from the tele-
phone number Marquez listed as his on his employment appli-
cation; all calls from Marquez to Carillo occurred only before
his layoff. As Respondent points out in its brief, although
Marquez was recalled by the General Counsel as a rebuttal
witness, he made no effort to explain why his telephone number
did not appear on Carillo’s telephone records. In his brief the
General Counsel points out that there are several possible ex-
planations as to why Marquez’ number appears on Carillo’s
phone records only before and not after the layoff. Indeed there
are. But the point is that findings of fact need to be based on
evidence and not speculation. In the absence of any explana-
tion to the contrary, Marquez’ telephone records were surely
available to him and the General Counsel as a basis of confirm-
ing his testimony concerning the telephone calls. The failure to
produce these records undermines Marquez’ testimony.
Marquez testified that about 2 weeks after the election he did
reach Carillo by telephone. Marquez claims he asked Carillo
that since the “union stuff” was over could he come back to
work. Carillo answered that he did not have any work. Carillo
testified that he could not recall any telephone calls from
Marquez after the election. Marquez’ testimony is not credible.
The likelihood that he would ask for his job back at Respondent
and give up his job at $41 per hour is remote at best. And
Marquez’ testimony that he was able to reach Carillo on this
single occasion after having been unable to reach him on all his
previous attempts rings hollow. I conclude that Marquez made
little, if any, effort to get his old job back.
On September 14, Carillo signed a form indicating that
Marquez was terminated. The form indicated that Marquez last
worked August 1, and was terminated because of “lack of
work. Also no-call and no-show.” Thereafter Marquez voted
without challenge at the election on September 21.
Carillo testified that he terminated Marquez because at that
time there was no work on the horizon and that considering the
new wage rates he would not be able to employ Marquez at
those rates. Carillo conceded that after he terminated Marquez,
he hired Eric Sanchez as an operator; Sanchez was referred to
Carillo by a foreman he had recently hired. Carillo tested San-
chez’ work for about an hour and concluded Sanchez did ex-
tremely well. In early 2006, Carillo hired another operator,
A.M. ORTEGA CONSTRUCTION 1117
Ernie Tripp. Carillo had worked with Tripp 15 years earlier
and knew him to be an experienced, good operator.
On February 7, 2006, Carillo called Marquez and offered
him work. Marquez said that he was doing a side job for his
brother but he would come in on February 9 to discuss the job
offer. Marquez called on February 9, and said that he was still
working on the side job and the soonest he could be in was
February 13. On February 13, Marquez did appear at the facil-
ity. Marquez told Carillo that he had been working as an exca-
vator earning $41 per hour. Carillo explained that he did not
have an operator’s position available but was offering Marquez
a position as a laborer. Marquez declined the offer. About 2 or
3 weeks later Marquez called and told Carillo that he wanted to
accept the offer of employment as a laborer. Carillo replied
that they did not need help at that time but Marquez was free to
submit an application and Carillo would review it. Marquez
then did complete an employment application on March 8,
2006, seeking work as an operator. The facts in this paragraph
are based on Carillo’s credible and largely uncontested testi-
mony.
At the hearing Respondent presented evidence that Marquez
was a poor employee and that was a reason why he was not
called back to work. Ruvalcaba claimed that Marquez’ per-
formance was not very good. He pointed to an instance when
Marquez was working as an operator lifting a two-ton trench
plate and Marquez dropped the plate from a height of 6 feet and
“almost killed somebody.” Marquez admitted he dropped a
plate, but claimed it was from a height of about 2 feet and no
one was endangered by the drop. Ruvalcaba also claimed that
Marquez had a hard time wearing his hard hat and safety vest
and that he swung his bucket too quickly and almost injured
someone a couple of times. Again, Ruvalcaba’s testimony
strikes me as exaggerated. David Vincent Hitzeman has
worked for Respondent for 24 years; for the last 13 years he has
worked as a foreman. Hitzeman worked with Marquez three or
four times. Hitzeman testified that he watched the way
Marquez operated the backhoe and move plates and concluded
it was a hazard and that he would rather do the task himself.
Hitzeman testified that Marquez rarely lasted more than a day
on his crew. He claimed that Marquez could not load a truck,
was slow digging, and always had to be told what to do.
Hitzeman told Carillo of his problems with Marquez’ work
performance. Carillo testified that Marquez was used on sim-
pler jobs because he could not operate as expected on more
difficult jobs such as street conversions. Carillo testified that
Hitzeman reported to him that Marquez was not very safe when
transporting steel plates and Marquez was slow in trenching on
street conversion jobs. Ruvalcaba also complained about
Marquez’ work to Carillo. According to Carillo, Foreman Jeff
Garrison repeatedly asked if he could get another operator to
replace Marquez on his crew. Carillo told Garrison that he did
not have a replacement and that Garrison had to work with
what he had. According to Marquez, no supervisor ever told
him that they did not like his work, but he later admitted that in
2004 he was reprimanded for failing to wear a hardhat on a
jobsite.
Steven Pasos Jr., began working for Respondent as a laborer
in June 2003: he had also worked there years earlier. Pasos
attended about 12–13 meetings sponsored by Local 89. From
5–6 to 10–13 employees attended these meetings. Pasos asked
questions at these meetings about what benefits the employees
would receive if Local 89 was selected. But Pasos did not pub-
licly reveal at these meetings how he intended to vote. As indi-
cated, Ruvalcaba and other foremen also attended some of
these meetings.
On about August 8, Carillo told Pasos that work was slowing
and thereafter Pasos did not receive any more work assign-
ments. As with Marquez, there is no contention that Pasos’
layoff was unlawful. Pasos testified that he called Carillo the
following workday and asked if there was work, but Carillo
again said things were slow. Pasos claimed that he called sev-
eral times that week and received the same response, so he
asked Carillo to call him if any work came in. However,
Carillo’s mobile telephone records indicate that while Pasos
called Carillo before his layoff he did not call during the days
after his layoff. In this regard the records show that earlier
Pasos was temporarily off due to lack of work but called Carillo
on July 21 and 22; Pasos returned to work the following Mon-
day.
On about August 11, Carillo called Pasos and asked if he
wanted to attend a flagging class. A flagger is a person who
does traffic control and Respondent was contemplating a bid on
some flagging work with SDG&E. Carillo called Pasos be-
cause he thought it was a good opportunity for Pasos to con-
tinue to work for Respondent. Pasos and other employees at-
tended the class. Ultimately, Respondent did not get the flag-
ging contract. According to Carillo, after he spoke to Pasos
about the flagging training he never heard from Pasos again
until after the election.
Pasos was subpoenaed by Local 89 to appear at a hearing on
August 17 in the representation case; Pasos appeared as re-
quired but the hearing was not held because the parties stipu-
lated to an election. Pasos sat in the back of the crowded hear-
ing room with other employees; Ortega sat in the front at a
table with his back to Pasos and the other employees. Ortega
testified that he noticed only two employees from Respondent
at the hearing, Bruce Dobbs and Kyle Keil. Keil was an open
supporter of Local 89 and told Ortega of this. Keil continued to
work for Respondent throughout this period. I credit Ortega’s
testimony that he did not observe Pasos in the crowded room.
On September 14, Carillo signed a form indicating that Pasos
was terminated. The form indicated that Pasos last worked
August 8 and was terminated because of “lack of work. Also
no-call and no-show.” Carillo explained that he had not heard
from Pasos for over a month and other laborers were coming in
and checking if there was work.
Pasos was an observer on behalf of Local 89 and voted with-
out challenge at the election on September 21.
After several weeks, Pasos still had not received his certifi-
cation card for the flagging class. He called Carillo who said
the certification card was in the office, so Pasos went to the
facility to pick it up. While at the facility Pasos noticed that
other employees who had been laid off with him had returned
to work. While he was there Pasos spoke to Flores; Pasos and
Flores disagree as to what was said. According to Pasos he
asked Flores whether he still was an employee with Ortega, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1118
Flores assured him that he was. Flores told Pasos that he
should wait a job or two. Flores, however, testified that Pasos
asked if he still had a job. Flores told Pasos that he had to talk
with Carillo. Pasos exclaimed, “Well, that’s how it’s going to
be?” Flores replied that he did not know what Pasos was talk-
ing about but that Pasos needed to get with Carillo. Flores
explained at the hearing that Carillo handled the dispatching of
the work force and that he, Flores, did not get involved. I con-
clude that Flores’ testimony is more probable than Pasos’ and I
credit it. Four or five days later Pasos called Carillo and asked
when he was going back to work. Carillo replied that he was
not going back to work, that Carillo had written him off. Pasos
asked why and Carillo replied because Pasos never called him.
Pasos then hung up the phone.
On February 7, 2006, Carillo called Pasos and asked if Pasos
was working. Pasos said that he was, and that it was with an
employer who recognized Local 89. Carillo said that Respon-
dent had work and offered Pasos employment, but he declined.
On February 13, Pasos called Respondent and claimed that he
had been laid off on February 8, and now wanted to return to
work. Carillo asked Pasos to report to work on February 15.
On February 14, Pasos called and asked what the pay rate
would be; he was told it would be $16.37 per hour compared to
the $15 he was making before his layoff. The new rate was for
the same position Pasos held before the layoff. Pasos then said
he would not work at that rate and did not appear for work.
These events were set forth in a letter that Carillo sent to Pasos
on about February 15; Pasos never disputed the contents of the
letter. I credit the letter and Carillo’s testimony about these
events over Pasos’ incomplete description.
Ruvalcaba testified that in his opinion Pasos’ work perform-
ance was less than average. He claimed that Pasos would mix
up the pipe that was being laid so he would have Pasos sweep
the streets and organize the yard. Pasos admitted that on a cou-
ple of occasions he made mistakes in handling conduit and
Ruvalcaba spoke to him about it. He remembered another oc-
casion where Ruvalcaba told him that he was messing up. Pa-
sos related an incident in April, before the organizational cam-
paign began, when he asked Carillo for a raise. Carillo an-
swered, in a sarcastic tone “oh yeah, I’ll think about it.” Pasos
took this as a negative comment on his work performance.
From time-to-time Hitzeman has been foreman of crews that
included Pasos. Hitzeman testified that he thought Pasos was
lazy, did not really have knowledge of the industry, and was
difficult to keep busy. Hitzeman testified that Pasos did not
know the difference between pipes, why they were working
there or what they were doing, so Hitzeman kept Pasos busy
doing simple tasks. Hitzeman also asked Carillo to move Pasos
from his crew to other sites. Carillo testified that when work
got slow and the foremen began to select who they wanted to
work with Pasos was rarely selected. The foremen explained to
Carillo that Pasos’ skill level was not up to the level of other
laborers. They frequently used Pasos to sweep around the work
site, performing flagging, or act as a gopher. Neither Pasos nor
Marquez received merit pay increases that other workers re-
ceived above the minimum.
As indicated, Respondent presented testimony purporting to
show that Marquez and Pasos were not recalled from layoff
because they were poor performers. But in a statement of posi-
tion submitted during the investigation of these cases Respon-
dent stated that Marquez and Pasos “did not regularly contact
the company to express their interest in returning to work if
business picked up. As a result, they were not recalled.” There
is no mention of poor performance.
Respondent did not give any written reprimands to Pasos for
his alleged poor work and, except for the instance of not wear-
ing a hardhat; Respondent did not give written reprimands to
Marquez either. Respondent, however, did give written repri-
mands to other employees. For example, on July 20, 2004,
Respondent gave Jesse Chairez a written reprimand and a 1-day
suspension for failing to lock an air compressor. On July 11,
2003, Respondent gave Chairez a written reprimand and 3-day
suspension for “not exposing wire by hand and hitting 6” PE
with backhoe.” On April 18, 2005, Jeff Garrison received a
written warning for leaving an air compressor on a jobsite re-
sulting in the loss of the compressor at a cost of $13,500. Gar-
rison received a 3-day suspension on February 22, 2006, for a
safety infraction involving his failure to shore up a trench. On
November 17, 2005, Ray Gutierrez received a written warning
for hitting a water line. Wade Koons received a written warn-
ing for making a bad gas fit. On July 5, 2004, Ruvalcaba re-
ceived a written warning not wearing a hardhat. Other similar
instances of discipline for poor work are documented in the
record. There is no evidence that Respondent failed to recall
any of these employees from layoff as a result of their poor
work performance.
Concerning the availability of work after the layoffs, Carillo
keeps a list of employees who are off from work, including
those who are off because of lack of work. By September 19,
no employees remained on Carillo’s off list due to lack of work
although thereafter there were times when employees were off
due to lack of work. By the final quarter in 2005, three new
names appear as employees in laborer positions—Gonzalo
Martinez, Tyler Marino, and Omar Martinez. I conclude that
the lack of work that led to the early August layoffs ended on
about September 19.
Carillo testified that he was unaware of the union sympathies
of either Marquez or Pasos when he laid them off and later
terminated their employment.
III. ANALYSIS
As described above, about a month before the election Ru-
valcaba and Osorno were driving together to a jobsite when
Ruvalcaba said that the election was coming up and what union
did Osorno support. Osorno replied that he was supporting
Local 89. Ruvalcaba said that he was supporting Local 47.
The General Counsel and the Joint Petitioners contend that
these remarks were an unlawful interrogation. In determining
whether questioning of an employee concerning the employee’s
union sympathies violates the Act, the Board examines all rele-
vant circumstances surrounding the questioning. Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Here, the questioning was conducted by a low-level supervisor.
In fact, Ruvalcaba had been invited to attend the Local 89
A.M. ORTEGA CONSTRUCTION 1119
meetings and did so. He and the other foremen expected to
vote in the election and the employees knew this. The ques-
tioning occurred in a truck as Osorno and Ruvalcaba were driv-
ing to a jobsite. Osorno, an open supporter of Local 89, hon-
estly answered Ruvalcaba’s question and then Ruvalcaba vol-
unteered his support for Local 47. The discussion then ended.
Under these circumstances I conclude that the questioning was
not coercive and did not violate the Act or constitute objection-
able conduct.
I have described above how on August 26 Flores said that if
the workers wanted to join Local 89 so badly, why they didn’t
just quit the company and go to work for a company that had
Local 89. The complaint alleges that Flores’ comments vio-
lated Section 8(a)(1). The Board has long held that such state-
ments threaten employees in the exercise of their rights guaran-
teed by Section 7 of the Act. Stoody Co., 312 NLRB 1175,
1181–1182 (1993), and cases cited therein. By telling employ-
ees that they should quit if they supported the Joint Petitioners,
Respondent violated Section 8(a)(1) of the Act.
The Joint Petitioners claim that Respondent engaged in ob-
jectionable conduct by granting Local 47 preferential access to
employees on its property and on working time. I have con-
cluded above that Respondent did grant Local 47 access to
employees on August 26 during working time. I have also
concluded that Respondent granted the Joint Petitioners access
to its property on September 2. But there is conflicting testi-
mony concerning when the meeting on September 2 actually
began. The Joint Petitioners bear the burden of persuading that
objectionable conduct has occurred sufficient to affect the elec-
tion results. Progress Industries, 285 NLRB 694, 700 (1987).
In this instance the testimony of the Joint Petitioners’ agent and
the testimony of an employee supporter is that the Joint Peti-
tioners did get access on September 2 during working time.
Under these circumstances I conclude that the Joint Petitioners
have failed to meet their burden on this issue. Next, the Joint
Petitioners contend that the Respondent’s “grant of a noticed
meeting during work time” (emphasis added) to Local 47 while
denying the same to the Joint Petitioners improperly affected
the election outcome. They rely on the testimony of Osorno
and Jones that they learned of the meeting with Local 47 from
their foremen. But there is no stipulation or proof that all fore-
men are supervisors or agents of Respondent. And even if the
foremen are supervisors, the evidence shows that they were
invited to meetings with Local 89 and Local 47 and expected to
vote in an election. So I decline to infer that Osorno’s and
Jones’ foremen learned of the meeting from Respondent as
opposed to from Local 47 or other employees. In sum, this
objection should be overruled.
The complaint alleges Respondent unlawfully threatened to
discharge Jones. I have found above that about a week before
the election Ruvalcaba angrily told Jones that he would be one
of the first to go. In the context of that discussion, this was a
threat to fire Jones because he supported Local 89. This state-
ment violates Section 8(a)(1). Electric Hose & Rubber Co.,
262 NLRB 186, 201 (1982). Ruvalcaba also said that Ortega
would never sign a contract with Local 89. This statement
signals employees that it would be futile to support the Joint
Petitioners; it also violates Section 8(a)(1). Baby Watson
Cheesecake, Inc., 320 NLRB 779, 785 (1996). Although the
complaint alleges that Ruvalcaba made that statement on or
about September 21, and I have concluded that the statement
occurred on about September 14, I find that the complaint alle-
gation is broad enough to cover this violation. Finally, Ruval-
caba said that Ortega would close its doors rather than sign a
contract with Local 89. This threat of plant closure if the em-
ployees selected Local 89 as their collective-bargaining repre-
sentative violates the Act. DeCasper Corp., 278 NLRB 143,
146 (1986). The last violation was not alleged in the complaint.
However, it was part of the same conversation as the other
violations which were alleged in the complaint. They are all
closely related and were fully litigated. Under these circum-
stances it’s proper to find the additional violation. Pergament
United States, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
(2d Cir. 1990).
Joint Petitioners argue that the general wage increase im-
properly affected the elections results. A grant of new or en-
hanced benefits to employees for the purpose of influencing
how the employees vote in an election is unlawful. NLRB v.
Exchange Parts Co., 375 U.S. 405 (1964). Here, a week before
the election Respondent granted wage increases to its unit em-
ployees. Absent explanation, the timing alone is sufficient to
warrant an inference that the wage increases were designed to
affect the election results. The raises given to employees were
substantial if not unprecedented; they ranged $1.33 to $11.33
per hour with a promise of an additional $1.37 per hour to come
later. The manner in which the raises were announced—
Respondent’s top officials visited the jobsites to personally
distribute the paychecks with the raises—indicates that some-
thing out of the ordinary was happening. In sum, the timing,
magnitude, and manner of announcement of the wage increases
together provide a compelling case against Respondent.
I turn now to examine the reasons proffered by Respondent
to explain the raises. First, as Joint Petitioners point on in their
brief, Respondent initially took the position in response to the
objections that it was under an “already existing duty to comply
with obligations imposed by its customer . . . that were previ-
ously set to become effective on September 1, 2005,” pursuant
to PUC order of December 16, 2004. But the evidence adduced
at the hearing does not support the contention that there was
any such duty to act by September 1. Indeed, in its brief Re-
spondent no longer makes this argument. The very fact that
Respondent asserts a justification and then abandons it indi-
cates to me that Respondent is still searching for a lawful ex-
planation. Respondent argues that it was required to grant the
wage increases pursuant to the PUC’s ruling and as required by
the SDG&E. However, those requirements were imposed in
late 2004 and early 2005; the wage increases were given in
mid-September. Moreover, the directives from the PUC and
SDG&E were imprecise concerning the amount of increases
that Respondent was required to give to the employees. Indeed,
as pointed out above, on September 12, 2 days before it granted
the wage increases, Respondent’s counsel sent a letter asking
the DIR for information concerning the prevailing rates. Noth-
ing from the PUC or from the SDG&E explains the magnitude
or timing of the wage increases. Respondent cites Tinius Olsen
Testing Machine Co., 329 NLRB 351 (1999). In that case, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
employer negotiated a new successor collective-bargaining
agreement with the incumbent union that provided for retroac-
tive wages increases. The employer paid the employees the
retroactive wage increases the first payroll period after the new
contract was ratified. The Board held that the grant of wage
increases did not improperly affect the results of the election.
Here, there is no evidence whatsoever that the wage increases
were granted pursuant to a successor collective-bargaining
agreement. Rather, the discussion between Respondent and
Local 47 centered on a contract to supersede the existing con-
tract before it expired. Respondent certainly had no legal re-
quirement to do that. Moreover, Respondent never established
that even a superseding contract was entered into. Respondent
did not place in evidence a signed copy of that agreement and I
decline to find one existed based solely on the self-serving
statements of the parties with a stake in this litigation. I con-
clude that Tinius is not on point. Having rejected the reasons
proffered by Respondent, I conclude that Respondent’s grant of
the wage increases on September 14 was improperly designed
to, and did, affect the results of the election.
Next, the General Counsel contends that on the day before
the election Ruvalcaba again unlawfully threatened that Ortega
would not sign a contract with Local 89 or that it might take a
year to do so. I have already found that Ruvalcaba made such
an unlawful statement on about September 14. Moreover, in
this instance Ruvalcaba told employees that he did not want to
go into a labor union because he did not know how long it
would take for Ortega to sign a contract and he did not want to
be short of work, so he thought that Local 47 was the safest
way to go for him and he did not know how long it would take
Ortega to sign the contract. So Ruvalcaba’s statements this
time were more ambiguous. In any event, I need not resolve
this contention because it will not affect the remedy.
In determining whether Respondent unlawfully failed to re-
call Marquez and Pasos from layoff, I use the analytical frame-
work described in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
NLRB v. Transportation Management, 462 U.S. 393 (1983).
Generally, the General Counsel must show that the alleged
discriminatees engaged in union activity, the employer knew of
the activity, and the employer was hostile to union activity.
Here, both Marquez and Pasos attended meetings on behalf of
Local 89 and spoke at those meetings, but so did many other
employees who were recalled from layoff. Marquez wore a cap
with Local 89’s name on it, but there is no evidence that anyone
spoke to him about the cap or otherwise noticed the name on
the cap. While Pasos attended the representation case hearing,
he was part of a crowded room and I have determined that Or-
tega did not see him there. In other words, the union activities
of Marquez and Pasos were minimal. Carillo testified that he
was unaware of the union sympathies of either Marquez or
Pasos when he laid them off and later terminated them. I credit
that testimony. I do so not only based on my observation of
Carillo’s demeanor, but also because the inherent probabilities
support that conclusion. I have already noted that Marquez’
and Pasos’ union activities were minimal and not of a nature to
have them stand out as Local 89 supporters. Also, I think it is
highly significant that Carillo called Pasos in the days follow-
ing his layoff to encourage Pasos to take a flagging class; this is
hardly consistent with someone set on a path to discriminate
against Pasos. While there is evidence that Ruvalcaba also
attended some of the Local 89 meetings, it does not always
follow as a matter of law that I must infer that Carillo learned
of this directly or indirectly from Carillo. Music Express East,
340 NLRB 1063 (2004); Dr. Phillip Megdad, D.D.S., 267
NLRB 82 (1983).
In concluding that the General Counsel has not met his bur-
den under Wright Line, I have considered the argument that
Respondent gave shifting explanations concerning its failure to
recall Pasos and Marquez. Respondent contends that Marquez
and Pasos were marginal employees and therefore were not
recalled. But, this reason did not appear on the termination
form or in Respondent’s statement of position. And while it
appears that Pasos and Marquez were not among the best of
employees, other employees had received discipline for poor
work yet continued to work. I conclude that this contention
was made up after the fact. Also, on the termination forms
dated September 14, Respondent refers to lack of work. But, I
have concluded that work began to pick up by September 19
and all other laid-off employees had returned to work. So this
justification is simply false. Normally these findings would
support a conclusion of discriminatory conduct. But, the fact
remains that on the termination form, in its statement of posi-
tion, in its comments to Pasos, and at the hearing that Respon-
dent has consistently maintained that a reason for failing to
recall Pasos and Marquez is that they failed to show an interest
in returning to work by failing to call in. I have concluded
above that Pasos and Marquez made little effort, if any, to re-
turn to work. So this is not a case where Respondent has gone
from one justification to the next; rather, although Respondent
has added on justifications, it has consistently provided the
same reason for its failure to recall the two employees. Under
these circumstances, I decline to infer discriminatory motive
from the multiple explanations. I dismiss these allegations.
Because I have concluded that Carillo did not see Pasos at the
representation hearing, I dismiss the 8(a)(4) allegation also.
CONCLUSIONS OF LAW
1 By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
(a) Telling employees that they should quit if they supported
the Joint Petitioners.
(b) Telling employees that it would be futile for them to sup-
port the Joint Petitioners.
(c) Threatening to fire employees because they support the
Joint Petitioners.
(d) Threatening to close its doors rather than sign a contract
with the Joint Petitioners.
2. Respondent’s grant of the wage increases on September
14 was improperly designed to, and did, affect the results of the
election.
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
A.M. ORTEGA CONSTRUCTION 1121
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, A.M. Ortega Construction, Inc., Lakeside,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they should quit if they supported
the Joint Petitioners.
(b) Telling employees that it would be futile for them to sup-
port the Joint Petitioners.
(c) Threatening to fire employees because they support the
Joint Petitioners.
(d) Threatening to close its doors rather than sign a contract
with the Joint Petitioners.
(e) 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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Riverside, California, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous 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. 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,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 26,
2005.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

4 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 pur-
poses.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 inso-
far as it alleges violations of the Act not specifically found.
I have concluded above that Respondent repeatedly violated
the Act during the critical period. I have also concluded that
Respondent engaged in objectionable conduct by granting the
wage increases to all unit employees. The combination of this
conduct prevented a free and fair election. Accordingly,
IT IS FURTHER ORDERED that a second election by secret ballot
shall be held among the employees in the unit found appropri-
ate, whenever the Regional Director shall direct and supervise
the election, subject to the Board’s Rules and Regulations.
Eligible to vote are those employed during the payroll period
ending immediately before the date of the notice of second
election, including employees who did not work during that
period because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic strike
that began less than 12 months before the date of the first elec-
tion and who retained their employee status during the eligibil-
ity period and their replacements. Jeld-Wen of Everett, Inc.,
285 NLRB 118 (1987). Those in the military services may vote
if they appear in person at the polls. Ineligible to vote are em-
ployees who have quit or have been discharged for cause since
the payroll period, striking employees who have been dis-
charged for cause since the strike began and who have not been
rehired or reinstated before the election date, and employees
engaged in an economic strike that began more than 12 months
before the election date and who have been permanently re-
placed. Those eligible shall vote whether they desire to be
represented by Local 47, the Joint Petitioners, or neither.
To ensure that all eligible voters have the opportunity to be
informed of the issues in the exercise of their statutory right to
vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate
with them. Excelsior Underwear, 156 NLRB 1236 (1966);
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accord-
ingly, it is directed that an eligibility list containing the full
names and addresses of all the eligible voters must be filed by
the Employer with the Regional Director within 7 days from
the date of the notice of second election. North Macon Health
Care Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election. No
extension of time shall be granted by the Regional Director
except in extraordinary circumstances. Failure to comply with
this requirement shall be grounds for setting aside the election
whenever proper objections are filed.