American Reclamation, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2012

31-CA-067258 (N.L.R.B. Sep. 17, 2012)

JD–(SF)-46-12
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN RECLAMATION, INC.
and Cases 31-CA-067258
31-CA-067259
31-CA-067262
31-CA-067263
31-CA-067265
31-CA-068671
31-CA-070330
31-CA-070331
31-CA-070334
31-CA-072357
31-CA-074588
PACKAGE AND GENERAL UTILITY DRIVERS,
TEAMSTERS LOCAL UNION NO. 396
Juan Carlos Ochoa Diaz and J. Carlos Gonzalez, Esqs., for the General Counsel.
Michael W. Droke and Jennifer C. Berry, Esqs. (Dorsey & Whitney, LLP), of Seattle,
Washington, for the Respondent.
Ricardo Hidalgo, International Organizer, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Los Angeles,
California, on July 24–27 and July 30–31, 2012. The Package and General Utility Drivers,
Teamsters Local Union No. 396 (the Union) filed the first charge on October 19, 2011,1 and the
General Counsel issued the consolidated.complaint on April 30, 2012. The complaint alleges
that American Reclamation, Inc. (Respondent) violated Section 8(a)(1) threatening employees
with termination for engaging in protected concerted activity, threatening employees with
termination to prevent them from engaging in union activity, including but not limited to

1 All dates are in 2011 and January 2012 unless otherwise indicated.
JD–(SF) -46-12
2
participating in a union organized employee delegation, threatening to terminate employees who
participated in a union organized delegation, creating the impression among its employees that
their union activities were under surveillance by maintaining a list of union supporters,
threatening to close or sell its facility if employees selected the Union, soliciting employee
complaints and grievances and promising employees improved working conditions to discourage 5
employees from supporting the Union, promising employees improved working conditions—
including but limited to, building changing rooms for employees, improving the employee
lunch/break room, buying microwaves for the employee lunch/break room, and buying better
safety glasses and masks for employees—to discourage their support for the Union, and finally
by improving working conditions by, among other things, buying new microwaves for the 10
employees break/lunchroom, making other improvements to the employee lunch/break room,
and building changing rooms for the employees to discourage their support for the Union. The
complaint alleges that Respondent also violated Section 8(a)(1) by discharging Karla Campos
because Campos engaged in protected, concerted activity by photographing hazardous materials
in the trash that employees worked with and encouraging employee to voice their concerns about 15
the hazardous materials to Respondent. Lastly, the complaint also alleges that Respondent
violated Section 8(a)(3) by laying off Santos Orellana and Magdeleno Sanchez because they
engaged in union activity.
Respondent filed a timely answer that admitted the allegations in the complaint 20
concerning the filing of the charges,2 interstate commerce and jurisdiction, and the supervisory
and agency status of John Gasparian, Respondent’s owner and president, and Nain DeLeon,
Respondent’s operations manager. At the hearing Respondent stipulated to the union labor
organization status. Respondent denied that Margarita Urquia was its agent and it also denied
having committed any unfair labor practices.25
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT30
I. JURISDICTION
Respondent, a corporation, has been engaged in providing rubbish hauling and recycling
services at its facility in Los Angeles, California, where it annually provides services valued in 35
excess of $50,000 to enterprises located within the State of California that are directly engaged in
interstate commerce. Respondent admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
40
45

2 Service of those charges is established by the proofs of service in the formal papers.
JD–(SF) -46-12
3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a facility where it recycles waste material. The recyclable products 5
are brought to the facility by Respondent’s drivers. The trash is then placed on large conveyer
belts where employees sort it by category such as plastic bottles, cardboard, etc. The sorted
products are then compacted and bound. Most recently Respondent has also been involved in
recycling construction waste materials. Another aspect of Respondent’s business involves
rubbish removal; Respondent’s drivers pick up rubbish from certain locations and haul it to 10
landfills were the rubbish is dumped. Respondent employs about 80 employees.
The drivers drive several types of vehicles. A front loader truck has two prongs that lift
up containers of trash and dump the trash into the truck; drivers of this truck work with an
assistant who helps in the process of lifting the containers. Roll-off trucks pull container of trash 15
onto the truck and haul the container away. The semi-truck is used to pull a box or container.
When there is no enough work for the drivers they will work in the yard and assist in sorting.
Respondent had a contract with the City of Irwindale for the removal of waste materials
for commercial and industrial enterprises. On November 30, 2010, the city advised Respondent 20
that it was extending that contract on a month-to-month basis through May 31, 2011; on that date
the contract ended and Respondent lost that business Driver Alberto Huerta did that route; he
was not laid off. In fact DeLeon conceded that after Respondent lost the Irwindale contract he
adjusted the routes of the drivers to redistribute the workload and no one was laid off at that
time.25
The following information is necessary to fully understand Respondent’s explanation for
the timing of some events in this case. On May 16 Gasparian’s father was involved in a car
accident that resulted in his hospitalization until his death on August 1. During that time period
Gasparian drastically cut back on his presence at the facility in order to spend time with his 30
father and family. In the process Gasparian became less aware of the every day happenings at
the facility.
B. Union Activity
35
Ricardo Hidalgo is an international organizer for the Union. The organizing effort began
in January 2011 and meetings with employees began the following month. The Union began
collecting authorization cards from employees at meetings on August 28 and September 11. The
Union filed a petition for an election on October 7. On October 11 the Union again met with
employees and additional authorization cards were signed. About 26 employees signed 40
authorization cards; the Union, however, advised employees to keep quiet about the union
activities so that Respondent would not learn of the organizing campaign.
I now describe the union activity of two of the alleged discriminatees. In February
Santos Orellana met with an organizer from the Union and about 2 weeks later he attended a 45
union meeting with other employees. About a month before he was laid off Orellana attended a
third union meeting; he and other employees signed authorization cards at this meeting. After
JD–(SF) -46-12
4
that Orellana attended yet another union meeting; at this meeting the Union advised the
employees what would be happening now that a number of employees had signed authorization
cards. Magdeleno Sanchez began supporting the Union in July when he met a union organizer at
a fast food restaurant. About 2 weeks later he and a number of other employees again met with
union organizers. He too attended the union meetings about a month before and a week or so 5
before his layoff. Finally on September 26 he and a coworker met with Hidalgo and signed
authorization cards.
Estefania Lopez works in the scale house as a weigh master. The scale house has a small
office where she and Margarita Urquia work and where Nain DeLeon has a desk area. One early 10
morning in late September, while Lopez was in the office, DeLeon approached her and said that
he wanted to talk to her. DeLeon asked Lopez if she knew about the rumors that were going
around. Lopez replied no, that she did not. DeLeon then asked Lopez if she belonged to the
Union and Lopez answered that she did not. DeLeon continued, asking if her husband, Wilfredo,
who also works for Respondent, was involved in the Union. Lopez answered no, he was not.3 15
These facts are based on Lopez’ testimony. Lopez’ demeanor was convincing and I note that she
is still employed by Respondent. I deal with DeLeon’s credibility in detail later in this decision.
C. Layoffs
20
Paragraph 11 of the complaint alleges that Respondent laid off Santos Orellana and
Magdeleno Sanchez on October 6 because they supported the Union; Respondent contends they
were laid off because of lack of work. Orellana started working for Respondent in June 2006;
he later stopped working there for about a year for health reasons. He was rehired in 2010 and
drove a semi-truck. In the months preceding his layoff Orellana typically started work at 6 a.m. 25
and usually worked until 6 p.m. or later, 5 days per week and sometimes also on Saturdays. He
was paid $14 per hour and $21 per hour for the considerable overtime work he did each week.
Sanchez work for Respondent as a front load truck driver from early 2006 until his layoff
on October 6. He was paid $15 per hour and $22.50 per hour for overtime work. Sanchez 30
worked a regular schedule starting at 5 a.m. and ending between 4–5:30 p.m. He too worked 5
days per week and sometimes a sixth day on Thursdays, his scheduled day off. Sanchez worked
6 days a week during the entire month of September—the month preceding his layoff. Indeed,
he was working overtime on Thursday, October 6, the day of his layoff.
35
Sanchez was involved in several vehicle accidents while working for Respondent;
Respondent’s relies on this accident record as an explanation of why it selected Sanchez for
layoff. A document in evidence shows that Sanchez was involved in five accidents since early
2006, the most recent being on February 23, over 6 months before his layoff. The first page of
the document appears to be a summary of other documents; that page indicates that Sanchez was 40
at fault in each of the accidents. But what appear to be original documents used to support the
summary are inconsistent with that summary. Nonetheless, the summary was received into
evidence without objection by the General Counsel; even I pointed out some concerns about the
document the General Counsel persisted in his belief that the summary was an accurate reflection
of the underlying records. So I conclude that Respondent determined that Sanchez was at fault 45

3 This incident is not alleged to be a violation in the complaint.
JD–(SF) -46-12
5
for each of the accidents. In any event, Sanchez reported the accidents to DeLeon and was not
disciplined in any way for them.
On October 4 Gasparian requested a hasty uniform inventory for Sanchez, Orellana,
Karla Campos, and Maritza Cerritos. Respondent computed how much would be owed if those 5
employees did not return their uniforms. Obviously, Respondent was contemplating terminating
those four employees. Respondent even prepared a check for Campos. That check was voided
and indicated that she was not laid off. It turns out, as described below, Orellana and Sanchez
were laid off 2 days later but Campos was no fired until January 6 and Cerritos continues to work
for Respondent. 10
Lopez credibly testified that around 11 a.m. on October 6 she was in the office and
observed DeLeon talking on the telephone. He left the area, came back and instructed Urquia to
call Sanchez and Orellana. Urquia then called Orellana at about noon while he was in the middle
of his route and told him to return to the yard. He returned to the facility where he waited 15
outside the scale house for about 2 hours until DeLeon arrived. While Orellana was waiting
outside DeLeon returned to the scale house. Urquia informed DeLeon of Orellana’s presence
and DeLeon angrily replied to let the son-of-a-bitch just wait. As he was sitting at his desk
DeLeon angrily commented to Urquia that “Those two are in it.” 4 DeLeon then told Orellana
that that he did not want Orellana there anymore, that the work was finished, there was no more 20
work. DeLeon gestured as he did so, indicating that Orellana was to leave. DeLeon and
Orellana then went to the office area where Orellana was handed his paychecks and again told
that there was no more work for him. DeLeon also said that Gasparian said that the cost was too
high. Sanchez too received a call in mid-day of October 6; he was instructed to drive his truck to
a location where two drivers were waiting, one to replace him on the truck and the other to drive 25
him back to the yard. Sanchez then encountered DeLeon at the scale house. They then went to
Gasparian’s office where DeLeon told Sanchez that he was terminated. DeLeon said that
Sanchez had to sign some papers but Sanchez refused to do so, explaining that he would not do
so without knowing why he was terminated. Sanchez said that he would return the next morning
when he was calmer. The facts in the preceding paragraph are based on a composite of the 30
credible testimony of Orellana, Sanchez, and Lopez.
Records indicated that for the week ending April 2, Respondent’s drivers worked a total
of 1101 hours. That number fluctuated but slowly increased so that by the week ending October
1, the total hours worked by the drivers was 1214.5 The week ending October 8, the week during 35
which Respondent laid off Sanchez and Orellana for lack of work, the weekly total increased to
1238. For the 4 weeks that followed the numbers shot up to 1284, 1325, 1300, and 1294. To
summarize, Respondent’s drivers were slowly working more and more hours prior to the layoff
and even more after the layoff. Finally, on September 29, less that a week before the layoffs,
Respondent hired Cristian Leiva as a “scout driver.” 40

4 The complaint does not allege that this incident violated the Act.
5 Suspiciously missing from Respondent’s document are the hours worked for the weeks ending July
16 and 23.
JD–(SF) -46-12
6
Respondent points to records indicating that there was declining tonnage of materials, but
Gasparian admitted that those tonnage reports did not include the work done by the semi-truck
drivers.
Analysis5
I apply the shifting burden analysis required by Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to determine whether the General
Counsel has met his initial burden of showing that Sanchez and Orellana were laid off because of
the union activities. See also T & J Trucking Co., 316 NLRB 771 (1995). I have described 10
above how both employees engaged in union activities. In late September Respondent was
aware of union activities among its employees when DeLeon questioned Lopez whether she and
her husband were involved with the Union. On the day of the layoffs DeLeon angrily
commented that Sanchez and Orellana were “in it.” In context, and in light of DeLeon earlier
questioning of Lopez concerning whether she husband was “in it” I infer that DeLeon was 15
referring to the Union. Other factors support the inference of knowledge. The layoffs occurred
in the middle of the workweek and in the middle of the workday. This hurried activity occurred
1 day before the Union filed its representation petition; I conclude this was not a coincidence.
After all, their was widespread participation among the employees in support of the Union, the
Union was in the process of obtaining authorization cards from the employees, and the Union 20
had informed the employees of the election process. Respondent’s hostility towards those union
activities is fully revealed by the questioning of Lopez by DeLeon, the anger exhibited by
DeLeon in the process of laying off the employees, and by list of unfair labor practices that
began shortly after the lay offs, as described below. I conclude that the General Counsel has met
his initial burden. 25
I have discredited the testimony that Respondent relies on to explain the legality of its
decision to lay off Sanchez and Orellana. Indeed, the specious nature of those assertions to wit:
the loss of the Irwindale contract that occurred months earlier, the alleged loss of business a time
when drivers were working large amounts of overtime and Respondent was hiring more 30
employees, and the totally fabricated reasons for the selection of Sanchez and Orellana for
layoff, only serve to strengthen the General Counsel’s case. By laying off Magdeleno Sanchez
and Santos Orellana because they engaged in union activity, Respondent violated Section 8(a)(3)
and (1).
35
D. The 8(a)(1) Allegations
Paragraph 6(a) of the complaint alleges that Respondent threatened employees with
termination for engaging in protected, concerted activities. The next day, October 7, Orellana
and Sanchez returned to the facility at the start of the workday and talked to a number of 40
employees about the events of the preceding day. They noticed DeLeon getting coffee from a
food truck outside the facility. So Sanchez, Orellana, Jose Perez, and about five or six other
workers approached DeLeon. They asked why the two had been laid off; DeLeon said only
Gasparian could answer that question and that he had nothing to say. Then DeLeon pointed with
his index finger at each of the other employees there and they were going to be the next persons 45
to lose their jobs. The facts in this paragraph are based on a composite of the credible testimony
of Orellana, Sanchez, and Perez. I note that Perez was still employed by Respondent at the time
JD–(SF) -46-12
7
he gave this testimony. . DeLeon then entered the facility while the employees remained outside.
DeLeon claims but Orellana, Sanchez, and Perez credibly denied that Orellana pushed DeLeon;
again I will deal with DeLeon’s credibility later in this decision.
Analysis5
I have described above how the employees gathered together to challenge DeLeon
concerning the layoffs of Sanchez and Orellana. This is classic concerted activity that is
protected by Section 7 of the Act. Meyers Industries, 281 NLRB 882, 885 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1986), cert. denied 487 U.S. 1205 (1988). DeLeon 10
threatened to discharge the employees because of that. It is unlawful for an employer to threaten
to discharge employees for such activity. Stevens Creek Chrysler Jeep Dodge, 357 NLRB No.
57, slip op. at 22 (2011). By threatening to discharge employees because they engaged in
concerted activity that is protected by the Act, Respondent violated Section 8(a)(1).
15
By the time DeLeon left the employees at the food truck and entered the facility it was
about 5:25 a.m. Orellana then called Gasparian at home. Orellana told Gasparian that they were
having an emergency and that they needed Gasparian to come to the facility. At about 8 a.m.
Gasparian arrived; Orellana, Sanchez and several other employees were waiting for him.
Orellana asked Gasparian why he had taken the jobs from them; Gasparian relied that there no 20
more work. After more conversation the other employees went inside and started work; Orellana
and Sanchez remained outside the facility Gasparian returned with DeLeon and told them that
they should be grateful that he gave them papers so they could get unemployment compensation;
they shook hands and left. Orellana’s exit interview form indicated that he was laid off for lack
of work. It also indicated, however, the layoff was permanent and that he would not be 25
recommended for rehire.
Paragraphs 8(b), (c), and (d) and 9 of the complaint allege that Respondent threatening to
close or sell its facility if employees selected the Union, soliciting employee complaints and
grievances and promising employees improved working conditions to discourage employees 30
from supporting the Union, promising employees improved working conditions – including but
limited to, building changing rooms for employees, improving the employee lunch/break room,
buying microwaves for the employee lunch/break room, and buying better safety glasses and
masks for employees – to discourage their support for the Union, and finally by improving
working conditions by, among other things, buying new microwaves for the employees 35
break/lunchroom, making other improvements to the employee lunch/break room, and building
changing rooms for the employees to discourage their support for the Union.. On October 11, 4
days after Respondent received a copy of the petition the Union had filed, Respondent held a
meeting with the yard employees to persuade them to vote against the Union. Gasparian led the
meeting; DeLeon was also present. Gasparian spoke in English and had other workers translate 40
his comments in Spanish. Gasparian said that the Union was attempting to introduce itself and
make changes at the company. Gasparian said that he was the owner and only he had the right to
make the changes. Gasparian said that he was not in t a position to allow the Union in the
Company because the Company was going through a crisis, that it was indebted for some trucks
that it had purchased and because of the poor economy. Gasparian said that the Union only 45
wanted their money and that the Union was no good for them. Gasparian told the employees that
he was not going to allow the Union to come in and tell him how to do things and that if the
JD–(SF) -46-12
8
Union came in he would be forced to sell the Company or shut it down or if not, that a bigger
company would come over and it was going to purchase the contracts that Respondent had and
the employees would be out of work. . Gasparian said that he wanted the employees to work as a
family; that they were all a family and had worked like this for many years and that the workers
would always have a job. Gasparian asked the employees what was going on at the Company, 5
what were the problems. He said to let him know what the problems are and what we needed to
change. After the employees remained silent for a while Gasparian said that he thought
everything must be okay then. At that point Ricardo Hidalgo, union international organizer,
entered the area and interrupted the meeting, shouting out that now Gasparian wanted to treat the
employees as a family and ask them what was going on. Gasparian and Hidalgo exchanged 10
words and finally Hidalgo was escorted out of the facility. In the meantime the employees
started talking among themselves. Then the employees told Gasparian that they needed more
masks and gloves, that DeLeon yelled at them, that they needed more microwaves, that the lunch
area needed to be cleaner, and they wanted rooms to use to change their clothes. Other
employees asked for insurance and wage increases. Gasparian said that he was going to work on 15
those matter; he even mentioned installing a suggestion box by the punch clock. Gasparian said
that he would fix up the eating area and build changing rooms. These facts are based on a
composite of the credible testimony of Karla Campos, Maritza Cerritos, and Margarita Castro.
There testimony was detailed and corroborative; their demeanor was convincing. Cerritos and
Castro were employed by Respondent at the time they gave their testimony. And I questioned 20
Campos again about what Gasparian said during a portion of the meeting. Her response to me
appeared to be truthful.6
The next day more microwaves were placed in the eating area and later changing rooms
were built near the eating area and a separation wall was constructed between the eating area and 25
the loading dock.
Analysis
I have described above how Gasparian threatened to sell the company or shut it down or 30
indicating that the employees would be out of work if the Union became their bargaining
representative. Such threats are unlawful. NLRB v. Gissel Packing Co., 395 U.S. 575, 618–619
(1969). By threatening to sell the Company or shut it down or otherwise indicating that
employees will be out of work if the Union became their bargaining representative, Respondent
violated Section 8(a)(1).35
I have described above how Gasparian invited the employees to express their concerns
about working conditions; this was done in the context of seeking to discourage employees from
supporting the Union. Respondent does not have a practice of soliciting employment issues from

6 In doing so I have considered Respondent’s argument, made at the hearing and again in its brief,
that Campos’ testimony should be discredit because after Campos’ discharge, described below, she
received money from LAANE, a non-profit organization that allied itself with the Union’s organizing
effort. But Campos provided affidavits to the Board during the investigation of the charges in this case,
Respondent was given those affidavits, Respondent failed to point out any inconsistencies in those
affidavits as compared to Carlos’ testimony at the hearing, and there is no evidence that at the time
Campos gave those affidavits she knew she would be receiving money from LAANE.
JD–(SF) -46-12
9
its employees. Gasparian also promised to address some concerns such as the changing rooms,
more microwaves, and an improved eating area for the employees. By soliciting employee
workplace concerns and promising to address those concerns in order to undermine support for
the Union, Respondent violated Section 8(a)(1). Kmart Corp., 316 NLRB 1175, 1177 (1995).
5
I have described above how in the days and weeks following this meeting Respondent
kept its promise and improved the working conditions of the employees by adding microwaves
to the eating area, constructing changing rooms, and creating a dividing wall separating the
eating area from the dock area. By improving the working conditions of employees in order to
undermine their support for the Union, Respondent violated Section 8(a)(1). Yale New Haven 10
Hospital, 309 NLRB 363, 366 (1992).
Paragraph 8(a) of the complaint alleges that at a meeting with drivers and helpers
Respondent threatened to close or sell its facility if employees selected the Union as their
bargaining representative. On October 12 Gasparian met with the drivers and helpers. 15
Gasparian said that he wanted to discuss the Union coming in. He said the Company was too
small for a union and that he did not have the money to cover the benefits the Union was asking
for. He explained that the Company was not like Waste Management. Gasparian said that they
were like a family and that he knew how to run the Company. Gasparian said that he would be
forced to close the Company or sell it if the Union came in. Duan Draper asked why he had not 20
received a raise in the last 3 years. Gasparian answered that he did not know that and he would
look into the matter. These facts are based on a composite of the testimony of Duan Draper, who
worked for Respondent as a front load truck driver from the summer in 2009 until the spring of
2012, and Jose Maria Perez who has worked for Respondent since August 2005; he currently
works as a front load truck driver Their testimony was corroborative and their demeanor was 25
convincing. I especially note that Perez is a relatively long-term employee who was still
employed by Respondent at the time he testified.
Analysis
30
By again threatening to close the Company or sell it if the Union became the bargaining
representative of the employees, Respondent violated Section 8(a)(1).
Next, paragraph 6(b) of the complaint alleges that on about October 17 DeLeon
threatened employees with termination to prevent them from engaging in union activity, 35
including but not limited to a Union organized employee delegation. On October 17 a group
gathered and then entered Respondent’s facility. The group included persons from the Los
Federations, UCLA, Sierra Club, and Los Angeles Alliance for a New Economy (LAANE),
Pacoima Beautiful, the Union, and Sanchez and Orellano. A number of employees, including
Karla Campos, gathered at the scale house and the outside group entered the facility and joined 40
then there. This occurred during the employees’ lunch break. The group then walked to
Gasparian’s office. Alfredo Hernandez worked for the Union as an organizer; he participated in
the demonstration that occurred on October 17. Before the demonstration began Hernandez
entered the facility and invited an employee, Vicente Aquino, to go outside and join the group
that was assembling for the demonstration. As Hernandez was doing so DeLeon arrived and said 45
“What are you doing there? You want a job right? Okay. Then don’t get involved in this
nonsense and go back to work.” The foregoing facts are based on Hernandez’s credible
JD–(SF) -46-12
10
testimony and Aquino’s pretrial affidavit. In his testimony at the trial Aquino indicated that
DeLeon told him to go to work in the back area and to return to the project he was working on
later. But in his pretrial affidavit Aquino stated that “if I wanted a job, it was best to go in the
back with my other co-workers. At no time did he threaten my job when he spoke to me.”7 I
conclude that Aquino may have subjectively not viewed DeLeon’s comments are a threat; but the 5
test is an objective one. Aquino’s demeanor at trial was not convincing; it appeared he was
unwillingly to say things against the interests of his employer.
Analysis
10
I have described how DeLeon told Aquino that if he wanted a job he should not get
involved in the Union sponsored demonstration. This was at the time when Aquino was being
solicited by Hernandez to join that demonstration. By threatening to discharge an employee if he
engaged in union activity, Respondent violated Section 8(a)(1).
15
Paragraph 6 (c) of the complaint alleges that Respondent unlawfully threatened to
terminate employees who participated in a union sponsored employee delegation; paragraph 6(d)
alleges that Respondent unlawfully created the impression among its employees that their union
activities were under surveillance. On October 17 Lopez saw the delegation pass the scale
house. About 2 hours later DeLeon came to the scale house and said that the people in the 20
delegation had all lost their jobs. He asked Urquia if she had seen all the employees who
participated in the delegation and instructed her to tell him the names of the employees involved.
Urquia identified those employees and then DeLeon made a list of the employees that Urquia
had identified. Still later DeLeon keep two folders on the computer in the scales house; one
folder contained a list of the employees who were supporting the Union and the other folder had 25
a list of those who were supporting Respondent. In the process DeLeon would make comments
such as that he had some employees who had been for the Union but now they were supporting
him. The facts in the preceding paragraph are based on Lopez’s credible testimony. Her
testimony was rich in details and her demeanor was convincing.
30
Analysis
DeLeon indicated that the employees who were involved in the Union sponsored
demonstration had lost their jobs. By threatening to discharge employees because they engaged
in union activity, Respondent violated Section 8(a)(1). I have described how DeLeon made a list 35
of the employees who had participated in the demonstration, how he kept a list of employees
who were supporting the Union and another list of those who were supporting the Respondent.
He made comments indicating that he had persuaded some supporters of the Union to come over
to Respondent’s side. Taken together, this unlawfully created the impression that Respondent
was spying on the union activity of its employees. By creating the impression that the union 40
activities of employees are under surveillance, Respondent violated Section 8(a)(1). Flexsteel
Industries, 311 NLRB 257 (1993).

7 Respondent objected to the translation of the affidavit. The words in the affidavit that are at issue
are “si quise trabajo.” I conclude the translation described above is correct. Respondent’s suggested
translation – “if I wanted to go to work” – simply cannot be read from those words.
JD–(SF) -46-12
11
Paragraph 7 of the complaint alleges that Respondent, through Margarita Urquia,
threatened to call immigration because employees were supporting the Union. Respondent
denies that Urquia is its agent. Urquia works as a weigh master in the scale house where trucks
are weighed upon entering and then leaving the facility. The scale house has a small office
where Stepania Lopez, also a weigh master, works and where Nain DeLeon has a desk area. 5
Urquia has worked for Respondent for 17 years. Urquia weighs the materials brought into the
facility, takes care of customer service, and does some dispatching work. In this regard
customers call to arrange for a pickup and Urquia will do the necessary paperwork. She
regularly communicates with the drivers, including informing them of any changes in the
schedule of the routes they are driving. For example, according to the credible testimony of 10
Duan Draper, a former driver, Urquia called him on a weekly basis and would ask him if he
could do an extra pickup. This came about when a customer finally paid an overdue bill or
requested additional service. Draper admitted that Urquia was either relaying a request from a
customer or transmitting a message from a supervisor. DeLeon has told the yard employees that
in his absence the employees must follow the direction given to them by Urquia. Urquia assists 15
the yard employees in resolving routine issues that have when DeLeon is not available. The
foregoing facts are based on a composite of the credible testimony of Lopez, Santos Orellana,
Karla Campos, and Margarita Castro. I do not credit the testimony of Urquia to the extent that it
is inconsistent with the facts described above; she seemed eager to diminish her authority.
20
In mid-October Urquia told Lopez that those people that were with the Union did not stop
and think about what the Union would be taking from their paychecks weekly or monthly and
that they did not stop and think that they were illegal and undocumented. Urquia continued,
saying that on the day the employees could least expect it immigration could show up and that
she would let Lopez and some others know the day that immigration was going to get there. 25
This conversation occurred in the office area in the scales house at about 2 p.m.
Analysis
I must first determine whether Urquia acted as an agent for Respondent in making the 30
comments to Lopez. I have noted above how Urquia transmits work instruction to employees
that emanate from DeLeon. Employees have also been instructed to obey Urquia’s directions
when DeLeon is unavailable. But under the fact pattern here I conclude that the General Counsel
has failed to establish agency. The General Counsel relies on case such as Dentech Corp., 294
NLRB 924, 925 (1989), to support its argument, but the fact pattern is not congruous with the 35
fact pattern here. Here Urquia’s authority concerning work instructions was entirely unrelated to
the topic of conversation with Lopez, immigration. Moreover, Lopez was not even a driver or
yard workers for whom Urquia acted as a conduit for DeLeon. Nor was the message conveyed
by Urquia a reiteration of comments made by Respondent. Finally as described below I issue a
broad order against Respondent. That order will effectively remedy any unlawful conduct 40
covered by this matter. For these reasons I dismiss this allegation of the complaint.
In late October DeLeon told Lopez that Gasparian did not have to go through the
headaches that the Union was provoking, that Gasparian was a multimillionaire, and that
JD–(SF) -46-12
12
Gasparian could sell the Company whenever he wanted to and that “we were all going to be
out.”8
Analysis
5
E. Discharge
Paragraph 10 of the complaint alleges that Respondent violated Section 8(a)(1) and (3) by
discharging Karla Campos because Campos engaged in protected, concerted activity by
photographing hazardous materials in the trash that employees worked with and encouraging 10
employee to voice their concerns about the hazardous materials to Respondent and because
Campos supported the Union.
Campos began worker as a sorter for Respondent beginning in June 2011. Campos heard
about the Union from two coworkers; she then attended several union meetings along with other 15
employees and signed an authorization card. At one of the meetings she, coworkers, and union
officials discussed filing a complaint about working conditions with OSHA. In November
Campos and other employees went to OSHA’s office and file that complaint. In early or mid-
December, OSHA officials visited Respondent’s facility. During that visit Campos approached
those officials and openly spoke to them about safety concerns. Campos showed them a dirty 20
hole where the employees had to go into. She complained that the employees lacked adequate
equipment to handle material such as syringes and dead animals that passed through the
conveyor belt. She mentioned the cockroaches and rats that were omnipresent in the yard,
including in the eating areas and bathrooms. Campos’ discussion with the OSHA officials lasted
about 30 minutes. Gasparian and DeLeon observed Campos’ interaction with OSHA officials25
from distances ranging from 5–7 feet to 10–15 feet. The OSHA officials spoke with several
other employees as well.
At some point Campos began meeting with union officials almost every day after work;
other employees were often present. She also spoke to about 10 coworkers, encouraging them to 30
join the Union; these conversations occurred at the facility during break and lunchtimes. After
the Union filed its representation petition Campos attended the hearing on behalf of the Union;
Gasparian also was present. At the trial Gasparian admitted he knew that Campos was a
supporter of the Union at the time he fired her.
35
Raymundo Bravo has worked for Respondent for about 7 years; he works as a baler. On
January 5 Bravo was working close to the conveyer belt when he discovered a plastic bin
containing used syringes. He also saw about 10 syringes lying on the ground near the container.
Bravo showed the syringes to Margarita Castro; Bravo then left the area to take a break. Castro,
in turn, told Campos that Bravo found a container and some syringes. Campos went to the area 40
and saw a large, open, rectangular, red plastic container. In the container were many used
syringes. Using her mobile phone, Campos took pictures of the container and syringes; she did
so that she could provide OSHA with evidence that employees had to deal with used syringes at
the workplace. As she was doing so DeLeon approached. As he did so Campos placed the red
container on top of the trash that had accumulated in very large metal bin that was nearby; the 45

8 The complaint does not allege this comment is a violation of the Act.
JD–(SF) -46-12
13
top of the red container remained visible. Campos then waited for DeLeon to reach her there.
DeLeon asked Campos what it was; Campos answered that DeLeon could obviously see what it
was for himself, a container with syringes. DeLeon asked where it came from and Campos told
him that it came from the material that had been sorted. DeLeon retorted that there was no way
that it could have come from there because the Company does not pick up waste materials from 5
hospitals or laboratories. Another employee, Maritza Cerritos, joined the conversation. DeLeon
asked her too where the syringes came from; Cerritos said that they came from the sorting area
and DeLeon should go to that area and ask those employees. DeLeon repeated that the syringes
could not have come from the sorting area. Cerritos asked if DeLeon was saying that someone
had brought the syringes there; DeLeon answered yes. 10
DeLeon left the area only to return shortly thereafter. He summoned the employees to
the conveyer belt area. While they were gathering there a coworker asked Campos what was
going on and Campos told him about the syringes. DeLeon saw them talking and sent the
coworker to a different area, telling Campos the he did not want her to be talking about OSHA. 15
DeLeon announced that someone tried to hide syringes and Campos protested that DeLeon
should talk to the employees and learn the truth. Campos told the assembled workers that she
had found a container of syringes, that she did not try and hide it but simply put it on top of the
bin, and that DeLeon was trying to say that employees brought the syringes to the Company.
DeLeon told her to shut up, that she could not talk and that she should write a report of what had 20
occurred. DeLeon also instructed the employees to write reports of what had happened.
Campos’ report read:
I saw some needles in the plastic we sort normally. It is not the first time we find them in 25
the working area. I moved them from the area to show the supervisor and at the time he
walk (sic) and saw where I put them and he grabbed them.
Bravo, who was the first person to see the syringes, wrote:
30
I saw the syringes in the basket and Margarita (Castro) placed them by the bale but I did
not see when she pulled it out and then Karla (Campos) then grabbed them. I was by the
machine.9
Castro wrote:35
I, Margarita Castro, while I was working saw that a bucket containing various syringes
was found while I was working with plastic.
Later that day DeLeon told Campos and Castro that he had coworkers look through a bale 40
of trash and search for syringes but none were found. Campos replied what made DeLeon think
he would find syringes there; the employees had already picked them. DeLeon announced that
there would be an investigation to find out how the syringes got there; Campos agreed that there
should be such an investigation. Campos urged other workers who were present to speak and
asked them whether they see syringes in the waste. She said, “Speak up, speak up. That is why 45

9 I have corrected the translation.
JD–(SF) -46-12
14
[DeLeon] does whatever he does to us, is because you remain silent. You don’t speak up.”
Finally an employee said that she had seen syringes before. According to Campos, prior to
January 5, she had seen syringes on the conveyer belt in DeLeon presence “many times” yet
DeLeon did not stop the conveyer belt and simply exhorted the works to keep working. Bravo
also testified that he saw syringes at the yard “all the time.” Castro also had seen syringes before 5
on the conveyer belt. The foregoing facts are based on a composite of the credible testimony of
Campos, Castro, Cerritos, and Bravo. They corroborated each other and their demeanor while
testifying convinced me that they were making every effort to relate the facts as they understood
them. I note that Cerritos, Bravo, and Castro were still employed by Respondent at the time they
testified.10
The next day, January 6, at about 6:15 a.m. Bravo informed DeLeon that it was he who
had found the syringes. Bravo asked if he would be disciplined for failing to say that in the
statement he gave the day before. DeLeon answered no, that everything was okay, that Bravo
should not say anything and just leave it like that and go back to work.10 Later that day DeLeon 15
fired Campos. Campos asked why she was being fired and DeLeon referred to what had
happened the day before. Campos protested that they were trying to blame her for the syringes,
but DeLeon said that the decision had already been made and she should leave.
On December 21 DeLeon held a safety meeting with all employees, including Campos. 20
Respondent’s minutes of that meeting disclosed several matters were raised including the
following:
Some of you are complaining that sometimes there are syringes coming along with the
trash. Although we are not handling these types of businesses, we still need to be very 25
careful when we are sorting. If you see any syringes stop the conveyer and immediately
and (sic) report to your supervisor. Do not touch or handle them at all. These
precautions apply to all workers in the yard.
Campos denied receiving any training concerning how to handle syringes if they were found in 30
the trash. She, Castro, and Cerritos all denied that DeLeon made the comments indicated in the
minutes. Bravo confirmed that it was only after the events of January 5 that the employees were
told that if they see syringes on the conveyer belt they should immediately stop the belt and
report it to a supervisor. I have already voiced my concerns about the documents produced by
Respondent concerning Orellana’s accident record. Below I express additional concerns 35
regarding the authenticity of photographs produced by Respondent. No employee ever saw those
minutes. I conclude they were simply created by Respondent in an effort to strengthen its case
against Campos. And by doing so, Respondent actually undermines it case.
Respondent has a written progressive disciplinary policy for violations of safety 40
procedures. It provides for first a verbal warning with documentation, then a written warning
with possible suspension, then disciplinary action up and including discharge, and for a fourth
violation, discharge.

10 In reaching this conclusion I have considered the fact that in his pretrial affidavit Bravo stated that
he had the discussion with DeLeon after someone told him that Campos had been fired; but at the trial
Bravo appeared certain that it occurred in the early morning.
JD–(SF) -46-12
15
Analysis
I again apply Wright Line in assessing the legality of Campos’ discharge. Campos was
among the leading supporters of the Union. She attended meetings, signed an authorization card,
encouraged employees to join the Union, attended the preelection hearing on the representation 5
hearing, and participated in the Union sponsored demonstration. Indeed, Gasparian admitted
that he knew Campos was a supporter of the Union. Tied in with her union activity was other
concerted activity that was protected by the Act. She, with other employees, filed the OSHA
complaint complaining about working conditions at Respondent’s facility and she and other
employees participated in the OSHA inspection of the facility that followed. As part of this 10
effort, when other employees found the container with syringes they passed the container to
Campos and she took photographs to document the existence of their dangerous presence at the
workplace. She encouraged employees, in the presence of DeLeon, to not be fearful and to
speak up about their working conditions. All this conduct is protected by the Act. Meyers
Industries, supra. Respondent’s animus toward the exercise of the rights of its employees that 15
are protected by law is convincingly demonstrated by the list unfair labor practices it committed
as described above. And Respondent earlier contemplated getting rid of Campos as part of its
unlawful layoff of Sanchez and Orellana. I conclude that the General Counsel has presented a
strong case in meeting his burden under Wright Line. Where the General Counsel makes a
strong showing of discriminatory motivation, an employer’s rebuttal burden is substantial. See20
Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991); see also Van Vlerah Mechanical, 320
NLRB 739, 744 (1996).
Respondent asserts that it fired Campos because she violated a policy that requires
employees not to handle unsafe material such as syringes, but to instead call a supervisor. But 25
first of all, to be precise, there is no evidence that Campos directly handled the syringes; rather
she and other employees handled the container with the syringes. This may still be unsafe, but it
is not as unsafe as directly handling syringes. Moreover, I have concluded above that
Respondent’s specific policy concerning syringes was not announced to employees until after
Campos’ discharge. Although common sense would dictate to employees that they not directly 30
touch syringes, at least some employees felt they could simply allow the syringes to pass through
the conveyer belt into the waste materials. The necessary element needed to support
Respondent’s position is that employees immediately call a supervisor when they discover
syringes. This is why DeLeon allegedly stood around watching Campos in plain sight; he was
allegedly waiting to see if she would report the syringes to a supervisor. But I have not credited 35
the evidence necessary to support that element. To the contrary, I have not even credited
DeLeon’s testimony that he stood there waiting to see if Campos would tell him about the
syringes. Continuing, even if such a policy had been enunciated to employees, Respondent knew
as a result of its own investigation that other employees had seen and handled the container of
syringes and had neither stopped work nor reported it immediately to their supervisors; no one 40
was disciplined for this alleged breach other than Campos. Bravo admitted to DeLeon that he
had discovered and handled the container; he was told, in effect, to shut up and go away.
Finally, Respondent has a progressive disciplinary process and Campos never received any
discipline before her abrupt discharge. I conclude that the reasons given for Campos’ discharge
were simply a pretext offered in an attempt to disguise the unlawful motive. By discharging 45
Campos because she engaged in union and other protected concerted activity, Respondent has
independently violated both Section 8(a)(1) and (3).
JD–(SF) -46-12
16
F. Credibility Findings
I have explained above the reasons why I have credited the testimony of he witnesses
produced by the General Counsel. I now explain in detail why I have not credited the testimony 5
of Respondent’s witness.
For example, I have considered Gasparian’s testimony that during the summer prior to
the layoff it was reported to him that there were “drivers here that are sitting around and really
not doing anything, they’re not driving.” This testimony strikes me as exaggerated if not totally 10
fabricated. It is belied by Respondent’s own records that the drivers continued to work 10- and
12-hour days and that the number of hours the drivers worked was slowly, albeit erratically,
increasing during the summer. I have considered Gasparian’s testimony that the loss of the
Irwindale contract and consequent loss of business contributed the layoffs of Orellana and
Sanchez. I reject that testimony. The loss of that contract occurred months before the layoff and 15
Gasparian had notice of that eventuality even months earlier. Yet Gasparian took no action until
the Union showed up. Gasparian testified that in selecting Sanchez for ff “our No. 1 in our plant
is safety and performance.” Yet in doing so Gasparian explained, “We judge not how bad the
accident was, but how frequently.” Because Sanchez was involved in a number of accidents,
Gasparian concluded that Sanchez “was an irresponsible driver and we were looking for a larger 20
accident to happen . . . .” But the obvious yet unanswered question is why did Respondent
continue to allow such an irresponsible and unsafe driver to continue to drive for months after his
latest accident? And then Gasparian testified that he selected Orellana because he was the least
senior. But what happened to “our No. 1?” Why was the next most accident prone driver not
selected? I conclude that Gasparian scoured the records of the Sanchez and Orellana after the 25
fact to come up with whatever convenient reasons he could find to disguise the unlawful reasons.
On cross-examination the General Counsel asked Gasparian when he first discussed the
downward trend in business with DeLeon; he answered about 6 months prior to the May.16
accident of his father. Gasparian explained, “I was hoping that we – I was giving our sales time
to try to re-group and go after new business.” Observing Gasparian’s demeanor as he answered, 30
it seemed to me that he was making up his testimony as needed in an attempt to conceal its
implausible nature. And this despite his testimony that each month during this time period he
reviewed the monthly tonnage reports that he testified indicated to him a decline in business.
And why after viewing months of declining business did Respondent abruptly layoff Orellana
and Sanchez in the middle of a workday in the middle of the week? Gasparian explained that 35
DeLeon was not promptly execute his command to lay them off, so he finally put his foot down
and directed DeLeon to do so at once. Give me a break! Gasparian admitted that at the October
11 meeting employees asked to have changing rooms built for them. He testified that he told the
employees “The changing rooms you see behind me are in construction. It’s something we’re in
the process of doing . . . .” But this defies common sense. Why would employees be requesting 40
that changing rooms be built when they could see them being built right in front of their eyes?
There are many, many more reasons why I reject Gasparian’s testimony to the extent it is
inconsistent with the facts described in this decision. I invite the reader to review the General
Counsel’s cross-examination of Gasparian to discover some of them.
45
I have considered DeLeon’s testimony; he has worked for Respondent for 20 years.
DeLeon also testified that although he had spoken to Gasparian about the decline in business
JD–(SF) -46-12
17
beginning in late 2010, he explained that in July he spoke to Gasparian about constructing the
changing rooms because they had just hired additional sorters most of whom were women. In
any event Gasparian and DeLeon claim that they then embarked upon a months-long process of
gathering wood and other material and began construction of the changing rooms on about
October 5. The General Counsel skillfully laid bare the contradiction during questioning as 5
follows:
Q. So if you knew that there wasn’t going to be enough work for a particular driver,
you would let him work in the yard so that he could earn his wage, correct?
A. Yes.10
Q. Instead of giving him the day off, right?
A. We were hoping that they were going to be covering phone calls.
Q. But even if there were no calls, they would work in the yard, right?
A. Yes.
Q. At that time, there was plenty of work in the yard, right? 15
MR. DROKE: Object to the form, vague as to time, and also misstates his testimony.
JUDGE KOCOL: Overruled. Please answer.
A. Can you repeat the question please?
Q. So during the -- say during the summer of 2011 when there was -- there was
enough in the yard, correct? There was something for the drivers to do if they 20
couldn’t be out driving, right?
A. No, not necessarily.
Q. Why did you have to hire yard employees during the summer?
A. We’re not having drivers work in the yard.
Q. That wasn’t my question. My question was, if you had the driver come into work 25
and there were no calls for him to tend to, there was work for him to do in the
yard, correct?
A. Yes.
Q. So he didn’t sit around all day and get paid eight hours -- or ten hours?
A. I need you to rephrase the question.30
Q. When a driver came in on a day that no calls came that he had to attend to during
the summer of 2011, that driver actually worked in the yard and he actually did
work, not just sit around?
A. Yes, that’s correct.
35
This examination is an example of DeLeon testifying in a manner that is evasive and both self-
contradictory and contradicting the testimony of Gasparian, who testified that he was told that
there were drivers in the yard not working during that time. And adding insult to injury, this
testimony belies that of Gasparian that the tonnage reports that he was reviewing on a monthly
basis showed a troubling decline of business that lead to the layoffs. Why would he have noticed 40
the increased hiring of female yard workers such to trigger him to order DeLeon to construct the
changing rooms, yet at the same time be troubled by the drop in tonnage? There is no credible
explanation for that enigma. I stop by inviting the reader to review the General Counsel’s cross-
examination of DeLeon for a veritable treasure trove of examples of why I have not chosen to
credit DeLeon’s testimony to the extent that it is inconsistent with the facts described earlier in 45
this decision.
JD–(SF) -46-12
18
Laura Ramirez had worked as a sorter for Respondent; 3 months before the trial she
became “in charge of the shop” making reports for the drivers. She has worked for Respondent
for about 1year. Ramirez testified that she assisted in the construction of the changing rooms
that was just beginning on October 5. Coincidentally, she testified that she took several pictures
of the changing rooms as they were being constructed; she claimed all the pictures were taken 5
before the October 11 meeting. She identified 11 photographs as pictures that she took of the
construction of the changing rooms, five of which bore the date of October 5. I required
Respondent to produce the photographs to the General Counsel in their original format. After a
weekend break, I allowed Respondent to recall Ramirez. She then testified that when she looked
at the photographs saved in her mobile phone she discovered “that I had only one photo on the 10
5th and that the other ones had different dates.” And what possessed Ramirez to take so many
photographs of the various stages of the drab, dull, changing-room project; did someone ask her
to take the photographs? No, she took them because “it was the first project that I had ever
done.” Yet apparently, according to her own testimony, she assisted in the project only to the
extent that she took measurements. I note that Respondent present testimony from Maria 15
Dressel, its office manager, concerning the construction of the changing rooms. Her testimony
was that by the October 11 meeting, construction was already underway. I asked Dressel what
stage the construction was in by October 11, she answered;
It was the beginning of the construction. . . . Just like – things were being moved 20
around, and laying wood or something down. . . . Yeah, maybe like a frame.”
That explains why Respondent did not show Dressel the photographs that Ramirez described; the
October 5 photographs shows walls had already been hung. Respondent never explained how
the photographs became dated, inaccurately, as having been taken on October 5. In the absence 25
of any credible I conclude that the dates on the photographs were manufactured to make it appear
that they were taken earlier that they actually were. From this I easily infer that Respondent was
trying to hide the actual dates that the construction work began. Ramirez also gave testimony
concerning the October 11 meeting, but her testimony was in response to leading questions and
her demeanor was unconvincing. It reaffirmed my sense that she was simply trying to please her 30
employer as opposed to testifying fully and accurately. And still another one of Respondent’s
witnesses contradicted Ramirez and the photographs. Arturo Avila has worked in several
positions for Respondent. Respondent’s counsel asked him if he saw any construction underway
around the eating area as of the October 11; his reply, “I don’t remember very well.” After an
objection to a leading question was sustained, Respondent’s counsel asked Avila what he saw in 35
the eating area around that time. Avila’s response was “Nothing, everything was normal.”
I have considered Aquino’s testimony that in the summer DeLeon asked him to start
collecting wood from the trash to construct changing rooms for the employees and that he began
constructing the changing rooms before the October 11 meeting. I do not credit that testimony; it 40
was given in response to leading questions and his demeanor was entirely unconvincing. In
addition, he was shown photographs of the changing rooms with dates that, as I describe above,
were misleading. I conclude that Aquino was trying to loyally support his employer’s legal
position rather than giving an accurate description n of the facts.
45
According to John Carlo, he began working for Respondent in “July/August” 2011; he
works with supervisors on special projects for new renovations and changes. Carlo knew
JD–(SF) -46-12
19
Gasparian before that time as Gasparian helped Carlo get into the business. According to Carlo,
Gasparian:
[E] xpressed the ides of isolating or renovating the current warehouse loading area,
isolating the break room, dressing rooms and whatnot. I came out and took some 5
measurements and proposed an idea and we proceeded to put the materials together and
develop it.
So sometime in January or February 2011, Carlo came to the facility and took measurements.
Remember, Ramirez too claimed she took measurements for this project, but much later. Carlo 10
also took photographs, none of which were produced, but Carlo then had his brother-in-law
create a drawing of the changing rooms and separating wall. The drawing is dated May 17,
2011. I pause at this point to point out that although Gasparian testified at the hearing for almost
an entire day, he never mentioned the drawing. And none of any of the other witnesses who
helped in the construction of the changing rooms ever testify that they used, over even saw the 15
drawing. So anyway, Carlo’s brother-in-law told him the type of materials that would be needed
for the construction and Carlo then told Gasparian to “Have your guys start saving this type of
material up.” So after he started working for Respondent. Carlo noticed “a pallet of lumber,
plywood, things like that I assumed, okay, good, we’ve got some wood now.” Respondent’s
counsel then asked “So after the collection of the materials began, before you started working for 20
American Reclamation? “ (emphasis added). Carlo answered: “Yeah.” So was it before or after
July/August that he saw the materials being collected? Carlo then identified copies of a number
of receipts from Home Depot and Lowe’s; a number of check marks and other markings
appeared on the receipts. Carlo testified that he was “almost sure” that he purchased some of the
material on the receipts for Respondent for the construction of the changing walls. For example, 25
there is a receipt dated July 7, 2011, indicating the purchase of:
ï‚· PNTRS CAULK $7.85
ï‚· JT COMPOUND $30.72
ï‚· PRIMER $25.9630
ï‚· INT PAINT $114.00
ï‚· PREMIX $11.95
ï‚· 3 PC PERF SET $13.97
ï‚· 2 IN. MASK TP $7.96
35
The purchase for the primer had a check mark next to it that indicated, according to Carlo, that
he was reimbursed for that purchase by Respondent. But Carlo admitted that he was working on
a several projects at the time unrelated to Respondent including a project for his mother, and
most of the supplies on that receipt were purchased for his mother. And looking at the entire
receipt, it seems logical, doesn’t it, that he would be purchasing the primer with the paint and 40
other supplies for his mother’s project? And should I believe that on July7 he purchased $25.96
worth of primer for a project for Respondent that had not yet even begun? The record reflects
that Carlo’s testimony was so hesitant that I finally expressed, “You seem hesitant.” Carlo
answered:
45
JD–(SF) -46-12
20
I’m just looking at the items because I can tell that some of this was actually for
my mom’s house too. I don’t want to confuse which ones they were, so I’m
hesitant.
Later Carlo claimed that he also purchased the interior paint and the joint compound indicated on 5
the receipt for Respondent also, but those items did not have a check mark next to them. Was he
not reimbursed for those purchases? And had the colors of the walls been selected before the
construction even began? Also, much of Carlo’s testimony was elicited from leading, and even
misleading questions. For example:
10
Q. Why did you receive petty cash in the amount of $11.14 on September 2nd, 2011?
A. I don’t recall what specifically that was for.
Q. It says wood dressing room on that document
A. I don’t think it was wood, unless it was one particular piece of wood that I had to
buy by myself, which I don’t recall.15
Q. Okay. Would there be any reason to mark dressing room there if it was not for –
A. No, I would –
Q. the dressing room?
A. I would write the specific area it’s being applied to.
JUDGE KOCOL: Do we have the originals for these documents?20
MS. BERRY: This is what I have, Your Honor.
JUDGE KOCOL: But do we have originals? You must’ve copied this out of
something.
MS. BERRY: :I received copies.
JUDGE KOCOL: I’ll ask again, do we have originals?25
MS. BERRY: Not that I know of, not in my possession, no.
Carlo was continuously uncertain exactly when he started working for Respondent; when I asked
Respondent for some documentation such an employment application or like to pin down the
date, none was provided. And the General Counsel pointed out that Carlo’s name was not listed 30
on the list of employees that he had subpoenaed. The reader is invited to read Carlo’s testimony
in its entirety. I conclude that Carlo’s testimony concerning the timing of his involvement, if
any, with the construction project was entirely fabricated.
Joe Pimentel is Respondent’s manager of customer service. He testified that he saw 35
drivers standing around in the yard and he told this to Gasparian. There is no explanation as to
why he would not tell this first to DeLeon, who is the drivers’ supervisor; this is especially so
when, according to Pimentel, he reported this to Gasparian during the period of time when
Gasparian was grieving the loss of his father and was at the facility on a very limited basis. I
asked Pimentel whether Gasparian mentioned at the meetings with employees in October that 40
unions were for big companies, not like American Reclamation; Pimentel answered “No, he
didn’t mention that.” These factors and as well as his demeanor convince me that Pimentel was
not attempting to give the facts as best he could.
Maria Dressel is Respondent’s office manager. She attended an October 11 meeting and 45
testified as to what Gasparian said at her meeting. Her testimony concerning what Gasparian
said at that meeting is exactly three sentences long and does not even indicate that Gasparian
JD–(SF) -46-12
21
mentioned the Union; something that every other witness agrees was the topic of the meeting!
Dressel seemed prompted to supply testimony that suited Respondent’s theory rather than
attempting to accurately give the facts.
Oscar Flores works as a mechanic for Respondent. Respondent elicited testimony from 5
him designed to show that the increase in hours that the drivers worked was because they were
stalling and creating problems. Flores testified on six occasions Draper called in to report that
his truck was not working but when Flores arrived at the scene the truck was in fact working
fine. This also happened about three times with driver Rene Cotto and twice with driver Jose
Perez. Each incident caused about 2–3 hours of down time for the drivers. But there is no 10
evidence that Respondent disciplined these drivers. Indeed, according to Flores, DeLeon
chastised him because so many trucks needed repair; it was only then that Flores apparently
blamed the matter on those drivers. Flores also testified that on about four occasions he found
magnets on Draper’s truck that were placed in such a so as to disable a critical function of the
truck. According to Flores, after the first time he told Draper not to put the magnets there, that 15
Draper would say okay, but then Draper would do it again. This testimony strikes me as
incredible on its face and unbelievable when matched against the record as a whole. In addition,
Flores was entirely unconvincing. In any event, the down time caused by these incidents
represents a tiny fraction of the hours worked by the drivers during that period. And even then
there are no records or credible testimony to show how much down time occurred prior to the lay 20
offs so as to show any net increase in down time.
Juan Martinez works for Respondent as a truckdriver; he has worked there for almost 13
years. His testimony concerning the October 11 was simply denials that Gasparian made the
threats alleged in the complaint; he gave no testimony concerning the details of the meeting. 25
Martinez gave testimony concerning the October 7 incident by the food truck with DeLeon
Sanchez, Orellana, and others; but he admitted he was merely walking by the food truck to enter
the facility to punch in. Arturo Avila has worked in several positions for Respondent.
Respondent presented him as a witness concerning the October 11 meeting, but he gave only
sketchy details. I asked Avila if he remembered that meeting; his reply was “a little bit.” Did 30
Gasparian mention the Union at that meeting; “No.” Did Gasparian mention the fact that
dressing rooms for the men and women were being constructed”; “Not that I remember.” Did
Gasparian say what the purpose of the meeting was; “He did say what was the purpose of the
meeting, but I don’t remember what it was he said.” Octavio Martinez has worked for
Respondent for about 7 years; he provided testimony concerning the October meeting about the 35
Union, but his testimony was hesitant and his demeanor unconvincing. Craig Doerr works as
regional manager and customer service for Respondent; he has worked there since 2003. He
presented testimony concerning the October 7 incident but he arrived after the incident involving
DeLeon and DeLeon did not tell him any of the details that had occurred earlier. He
corroborated the fact that Respondent lost the Irwindale contract in May and gave his estimates40
concerning its impact on Respondent’s business, but it was obvious that he had first hand
knowledge only concerning certain portions of that business and no business records were
produced to corroborate those estimates. James Rials has worked for Respondent for over 20
years; he works as truckdriver. His testimony suffered from many of the flaws I have described
above. In addition, I note he was eager to supply information helpful to Respondent concerning 45
something about which he knew nothing. To wit:
JD–(SF) -46-12
22
Q. Did you have an opportunity to observe the length of time that the drivers were
working their routes in 2011?
A. The drivers kind of slowed the exit down, like –
Q. I’m asking you a different question. The question is simply did you have a
chance to see how long drivers were on the road, based on your work?5
A. No.
Jose Menjivar has worked for Respondent for about 5 years; he works as a front load truck
driver. His testimony was very, very brief. I could not make a good assessment of his demeanor
one way or the other. But in the context of the entire record his testimony contributes little to the 10
outcome of this case. Roberto Huerta has worked for Respondent for 23 years; he works as a
driver. When asked what Gasparion said at the October 12 meeting, Huerta replied: “That he
wasn’t going to sell the company, that he wasn’t going to close it.” Enough said. Armando
Villareal has worked for Respondent for 5 years; he works as a driver’s helper. He gave
testimony concerning the October 12 meeting, but he had limited recall of that meeting. Martin 15
Covarrubias Salazar worked for Respondent in a variety of positions; at the time of his testimony
he was no longer employed by Respondent but his father still worked there. His testimony
concerning the October 11 meeting was more detailed and credible than most of the others
witnesses for Respondent. Indeed, Covarrubias to some extent corroborated the testimony of the
General Counsel’s witness that Gasparian opened the floor for employees to express their 20
concerns and responded to those concerns in some fashion. But when balanced against the
record as a whole and his obvious loyalty to Gasparian family, I do not credit his testimony to
the extent that it is inconsistent with the facts described above. Pedro Rojas has worked for
Respondent for about nine months as a sorter. He testified concerning the October 11 meeting;
given that he testified on July 31, he must have just started working there. He gave a one-25
sentence description of what Gasparian said to the employees before he mentioned that Hidalgo
interrupted the meeting; Rojas then gave a more detailed description of that interruption. He was
asked: “Do you recall employees talking to Mr. Gasparain?” Curiously, he answered, “I realized
that only Karla [Campos] was on her cell phone talking.” Rojas even denied that anyone made
any comments to Gasparian during the meeting. He claimed that the lunch area looked the same 30
now as it did when he started with the company. Rojas also testified concerning the safety
meeting in December. Remember, even according to Respondent, that meeting covered a
number of items. Yet when asked what was said at that meeting Rojas began with the “toxic
waste and needles and things we cannot touch; that if we saw something toxic, we had to tell a
supervisor and we couldn’t touch it.” This, of course, is related to the reason Respondent asserts 35
that Campos was fired. I questioned him as to why that was the first thing he mentioned about
the meeting; his demeanor while answering my question was entirely unconvincing. For these
reasons I do not credit Rojas’ testimony. Jessica Cruz has worked for Respondent as a sorter
since about February 2011; she was out on maternity leave from August 12 to November 7. In
other words she left on maternity leave before there was any mention of syringes in the sorting 40
process or even before DeLeon himself claims he specifically addressed the problem.
Nonetheless she testified that at the safety meetings that were held almost every month DeLeon
instructed employees not to touch the syringes; instead they should stop there work and contact a
supervisor. At the December 25 meeting, what is DeLeon say? On cue, “He talked about the
syringes . . . . Finally, Elsa Mira works as a sorter for Respondent; she has worked there for 45
about 18 months. She presented testimony concerning the October 11 meeting, but it was
apparent that she did not understand everything that was said at the meeting and was giving her
JD–(SF) -46-12
23
impressions rather than trying to give factual testimony. For all these reasons and more, I have
decided not to credit the testimony of Respondent’s witnesses to the extent that their testimony is
inconsistent with the facts described earlier in this decision.
CONCLUSIONS OF LAW5
1. By laying off Magdeleno Sanchez and Santos Orellana because they engaged in union activity
and by discharging Karla Campos because she engaged in union and other protected concerted
activity, the Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.10
2. By threatening to discharge employees because they engaged in concerted activity that is
protected by the Act, threatening to sell the company or shut it down or indicating that the
employees would be out of work if the Union became their bargaining representative, soliciting
employee workplace concerns and promising to address those concerns, improving the working
conditions of employees in order to undermine their support for the Union, threatening to 15
discharge employees because they engaged, or if they engage, in union activity, creating the
impression that the union activities of employees are under surveillance, the Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY20
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. The Respondent, having discriminatorily discharged and laid off
employees, must offer them reinstatement and make them whole for any loss of earnings and 25
other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No.
8 (2010), enf. denied on other grounds sub. nom., Jackson Hospital Corp. v. NLRB, 647 F.3d
1137 (D.C. Cir. 2011). 30
. Because of the Respondent’s egregious and widespread misconduct, demonstrating a general
disregard for the employees’ fundamental rights], I find it necessary to issue a broad Order
requiring the Respondent to cease and desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).35
The General Counsel seeks additional remedies in this case. First the General Counsel
seeks an order that the notice be read aloud to assembled employees. I grant that request. See
Marquez Bros. Enterprises, 358 NLRB No. 61 (2012), and cases cited therein where the Board
reversed my ruling that such a remedy was not necessary. As in that case, as here, the 40
Respondent’s unfair labor practices were both widespread and egregious. I shall require that the
notice be read in both English and Spanish. I shall require that Gasparian read the notice to the
assembled employees in English and because Gasparian does not speak Spanish I shall require
DeLeon to read the notice in Spanish to the assembled employees. Respondent will have the
option of having a Board Agent read the notice in English and Spanish to the assembled 45
employees, provided, however, that Gasparian is present while the Board agent does so.
JD–(SF) -46-12
24
The General Counsel also seeks two additional remedies. For reasons that follow I grant
both of them. Section 10(c) of the Act gives the Board the power to devise remedies for unfair
labor practices that will “effectuate the policies of the Act.” The discriminatees here will receive
lump sum payments of backpay. This may result in higher state and federal income taxes than
they would have paid had they not been unlawfully fired. To this extent the unlawfully 5
discharged employees will not have been made whole. To more fully remedy the violations I
have described above and therefore to more fully effectuate the policies of the Act, I shall order
Respondent to reimburse the unlawfully discharged employees for the amounts equal to the
difference in taxes they owe upon receipt of the lump sum payment and the amount of taxes they
would have owed had they not been unlawfully terminated. Next, the General Counsel points 10
out that the Social Security Administration generally credits backpay to an individual’s earnings
record in the year reported by the employer. Here the unlawfully discharged employees will
likely receive backpay several years after they were fired. In some cases this may result in lower
benefits or even the failure to qualify for any benefits due to a lack of the required credits.
Again, to the extent that this happens an unlawfully discharged employee will not have been 15
made whole for the unlawful discharge. Again, to more fully remedy the violations I have
described above and therefore to more fully effectuate the policies of the Act, I shall order
Respondent to complete the paperwork needed to properly notify the Social Security
Administration so that it may properly allocate the backpay to the appropriate periods.
20
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
25
The Respondent, American Reclamation, Inc. Los Angeles, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating against any employee for supporting the 30
Package and General Utility Drivers, Teamsters Local Union No. 396 or any other union, or
because they engage in concerted activity that is protected by the Act.
(b) Threatening to discharge employees because they engaged in concerted activity that is
protected by the Act.
(c) Threatening to sell the company or shut it down or otherwise indicating that employees will 35
be out of work if the Union became their bargaining representative.
(d) Soliciting employee workplace concerns and promising to address those concerns in order to
undermine support for the Union.
(e) Improving the working conditions of employees in order to undermine their support for the
Union.40
(f) Threatening to discharge employees because they engaged, or if they engage, in union
activity.

11 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.
JD–(SF) -46-12
25
i. (g) Creating the impression that the union activities of employees are
under surveillance.
2. Take the following affirmative action necessary to effectuate the policies of the Act.5
(a) Within 14 days from the date of the Board’s Order, offer Santos Orellana,
Magdeleno Sanchez, and Karla Campos full reinstatement to their former jobs
or, if those jobs no longer exists, to a substantially equivalent position,
without prejudice to their seniority or any other rights or privileges previously
enjoyed.10
(b) Make Santos Orellana, Magdeleno Sanchez, and Karla Campos whole for any
loss of earnings and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge and lay offs, and within 3 days thereafter 15
notify the employees in writing that this has been done and that the discharge
and lay offs will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security 20
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Los Angeles, 25
California copies of the attached notice marked “Appendix”12 in both English
and Spanish. Copies of the notice, on forms provided by the Regional Director
for Region 31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to 30
employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices 35
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 employees employed by the Respondent at any time 40
since October 6, 2011.

12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–(SF) -46-12
26
(f) Within 14 days after service by the Region, hold a meeting or meetings,
scheduled to ensure the widest possible attendance, at which the attached
notice, Appendix A, is to be read to the employees in both English and
Spanish by the Respondent’s owner and president or, at the Respondent’s
option, by a Board agent in that official’s presence.5
(g) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
10
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C. September 17, 2012
15
____________________
William G. Kocol
Administrative Law Judge
20
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, lay off, or otherwise discriminate against any of you for supporting
the Package and General Utility Drivers, Teamsters Local Union No. 396 or any other union or
because they engage in concerted activity that is protected by the Act.
WE WILL NOT threaten to discharge employees because they engage in concerted activity that
is protected by the Act.
WE WILL NOT threaten to sell the Company or shut it down or otherwise indicate that
employees will be out of work if the Union became their bargaining representative.
WE WILL NOT solicit employee workplace concerns and promise to address those concerns in
order to undermine support for the Union.
WE WILL NOT improve the working conditions of employees in order to undermine their
support for the Union.
WE WILL NOT threaten to discharge employees because they engaged, or if they engage, in
union activity.
WE WILL NOT create the impression that the union activities of employees are under
surveillance.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Santos Orellana, Magdeleno
Sanchez, and Karla Campos full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Santos Orellana, Magdeleno Sanchez, and Karla Campos whole for any loss of
earnings and other benefits resulting from their discharge, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge and lay offs of Santos Orellana, Magdeleno Sanchez, and Karla Campos,
and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done
and that the discharge and layoffs will not be used against them in any way.
American Reclamation, 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.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
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, (310) 235-7424.