A.S.I., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 2001

333 N.L.R.B. 70 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
Asbestos Services, Inc., d/b/a A.S.I., Inc. and Wayde
Torrey Nelson. Case 31–CA–23691
January 22, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 11, 2000, Administrative Law Frederick
C. Herzog issued the attached decision. The Charging
Party filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Dean Yanohira, Esq., for the General Counsel.
Philip W. Ganong, Esq. (Ganong & Klier), of Bakersfield,
California, for the Respondent.
Adam N. Stern, Esq. (Levy, Stern & Ford, P.C.), of Los Ange-
les, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. The
case was heard before me in Bakersfield, California, on Febru-
ary 28 and 29, 2000, and is based on a charge filed on January
21, 1999, by Wayde Torrey Nelson, an individual, alleging,
generally, that Asbestos Services, Inc. (Respondent) committed
certain violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). On June 17, 1999, the Regional
Director for Region 31 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing alleging
violations of Section 8(a)(1) and (3) of the Act. Respondent
thereafter filed a timely answer to the allegations contained
within the complaint, denying all wrongdoing.

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative judge’s credibility resolutions unless the clear preponderance 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.
We also find without merit the Charging Party’s allegations of bias
on the part of the judge. On our full consideration of the record, we
find no evidence that the judge prejudged the case, made prejudicial
rulings, or demonstrated bias in his credibility resolutions, analysis, or
discussion of the evidence. We, accordingly, deny the Charging Party's
motion for a new hearing.
2 The judge found that the Respondent established that it would have
discharged Nelson even in the absence of his protected concerted activ-
ity for several reasons, including his complaining to the legal depart-
ment at Vandenburg Air Force Base about the Respondent’s alleged
noncompliance with the Davis-Bacon Act. In adopting this finding, we
note that the judge discredited Nelson’s claim that he spoke to other
employees about this issue. Consequently, although Wayde Torrey
Nelson’s activity at Vandenburg Air Force Base may have been pro-
tected, it was not concerted in this instance. See Meyers Industries, 281
NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied sub nom. Meyers Industries v. NLRB, 487 U.S.
1207 (1988).
At the hearing I granted the General Counsel’s motion to
amend the complaint in certain respects.
All parties appeared at the hearing, and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally and file
briefs. Based upon the record and my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that Re-
spondent is a California corporation, with its principal place of
business located in Bakersfield, California, where it is engaged
in the business of asbestos abatement; and that it annually pro-
vided services valued in excess of $50,000 to enterprises in
California which meet the Board’s direct jurisdictional stan-
dard.
Accordingly, I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Heat & Frost Insulators & Asbestos Workers, Local 5 (the Un-
ion) is now and at all times material, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Wayde Nelson was an employee of Respondent. He signed
for a copy of the employee manual on June 29, 1998, and was
interviewed by Pat O’Malley on July 10, 1998. At that inter-
view, Pat O’Malley, president of Respondent Company, in-
formed him that Respondent was withdrawing from the Union.
Nelson testified that on July 13, 1998, he met with Kevin
O’Malley, manager of Respondent Company. At that meeting,
Nelson instigated a discussion into union issues by requesting
confirmation that Respondent was withdrawing from the Un-
ion. Nelson also testified that on his first day of work, July 16,
1998, he began to talk to other employees about Davis-Bacon
pay rates and safety issues. He additionally testified that, on
July 27, 1998, he began discussing Davis-Bacon pay with
Kevin O’Malley, and around the same time, he contacted the
Union about safety and Davis-Bacon pay concerns.
Memoranda introduced into evidence by the Charging Party
indicated that on September 9, 1998, as well as on October 30,
1998, Kevin O’Malley spoke to Nelson about Nelson’s failure
to take air sample data from a jobsite, a violation of California
Occupational Health and Safety Administration (Cal-OSHA)
requirements. On November 17, 1998, Respondent docu-
333 NLRB No. 6
A.S.I., INC. 71
mented an inability to bill a customer for a job because Nelson
had failed to gather appropriate information.
Nelson filed a complaint against Respondent with the De-
partment of Labor relating to Davis-Bacon pay and claimed that
it was filed on his own behalf as well as the behalf of other
workers. He testified that he filed a Cal-OSHA complaint in
October 1998 regarding safety concerns, and he also filed
charges with the NLRB against the Union. The complaint in
this case alleges that Respondent interrogated him about his
union activities, threatened employees with layoff and plant
closure because he had filed complaints with Government
agencies, discharged him, and have refused to reinstate him to
his former position of employment.
B. Credibility Considerations
Credibility findings are critical in this case. The accounts
provided by the only witness for the General Counsel, Wayde
Nelson, sharply conflict with the accounts provided by Respon-
dent’s witness, Pat O’Malley.
Yet, “[C]redibility findings may rest entirely upon evidence
through observation which words do not, and could not, either
preserve or describe.” Roadway Express, 108 NLRB 874, 875
(1954). The demeanor of a witness may satisfy the tribunal, not
only that the witness’ testimony is not true, but that the truth is
the opposite of his story; for the denial of one, who has a mo-
tive to deny, may be uttered with such hesitation, discomfort,
arrogance, or defiance, as to give assurance that he is fabricat-
ing, and that, if he is, there is no alternative but to assume the
truth of what he denies. NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962) (quoting Dyer v. MacDougall, 201 F.2d 265,
269 (2d Cir. 1952)).
The following instances reflect some issues specific to this
case that weighed upon credibility.
The General Counsel’s witness, Nelson, repeatedly provided
conflicting information and inconsistent testimony.
He chose to provide various reasons for his termination by
Respondent to suit his evolving agenda. For example, he filed
a Workers’ Compensation claim indicating that he was fired for
being injured on the job and he testified that he believed this
was the reason he was discharged. Yet, with the Department
of Labor, he claimed that he was fired for whistle blowing.
Now, here, in a case concerning termination for union activity,
in his affidavit, he testified that he did not talk about concerted
activity or any union activity as part of the grounds for his ter-
mination.
When these discrepancies were highlighted at the hearing,
Nelson blandly testified that some documents in evidence
might contain forgeries of his signature. He also testified that
any inconsistent information in his sworn and signed declara-
tion, (and there were a number of them), were the result of
“typos.”
Nelson’s pervasive engagement in artful dodging of ques-
tions caused me to labor unsuccessfully to obtain simple an-
swers from him, such as the number of times he was claiming
to have been interrogated in November 1998. He additionally
impeached himself regarding whether he had met with any
union officials in person.
By contrast, the demeanor of Respondent’s witness, Pat
O’Malley, lacked any of the flaws noted above with respect to
Nelson. Pat O’Malley gave consistent, candid, and evidently
forthright testimony. His testimony was often directly sup-
ported by documents admitted into evidence, such as the em-
ployee handbook, phone messages from Bird Roofing, and
memoranda of concern about Nelson’s work performance, to
name a few. His testimony was additionally bolstered by an-
other of Respondent’s witnesses, Robert Garcia.
After thoroughly reviewing the testimony and exhibits, and
considering all of the circumstances, including witness de-
meanor and inherent probability considerations in assessing and
making the credibility resolutions critical to the findings I have
ultimately made, I am persuaded by the superior veracity of Pat
O’Malley. I am satisfied that the material facts revealed in the
credited record, and Pat O’Malley’s demeanor, reflect that he
was telling the truth, and that Nelson was not. Bearing in mind
these credibility conclusions, the findings below reflect my
ultimate conclusions about the events of this case.
Testimony contrary to my findings, though occasionally
noted, has been discredited because it conflicted with credited
testimony or documentary evidence, or because I found it to be
inherently incredible and unworthy of belief.
C. The Interrogation Allegation
Relevant Facts
During the time Nelson was employed with Respondent,
there had been one visit from Cal-OSHA. It occurred prior to
November 16, 1998, and Respondent did not link the visit to
Nelson at that time.
On November 16, 1998, Respondent received notice from
the NLRB about the charges Nelson had filed against the Un-
ion. The charge was included in the notice and alleged that the
“complicity” between the Union and Respondent had caused
employees to be working “without the appropriate safety gear
and medical physicals as required by Cal-OSHA Regulations
and the Federal Government.” Prior to receipt of this notice,
Respondent was unaware that employees had safety concerns.
At a meeting on November 17, 1998, Nelson was asked
about the specifics of these general “safety gear” violations.
The meeting took place at the Respondent’s facility in a gather-
ing area of the office. Nelson had normal, day-to-day access to
this area in order to obtain job assignments, to turn in his daily
reports as a Competent Person which included information such
as job activities and the men working for him, to communicate
with upper management, and to access his timecard.
Pat O’Malley, Kevin O’Malley, and Gus Theodore were all
present at the meeting. All three men are agents of Respondent
within the meaning of Section 2(13) of the Act and supervisors
of Respondent within the meaning of Section 2(11) of the Act.
Kevin O’Malley specifically is responsible for answering any
charges of Cal-OSHA violations. Nelson was told that he was
free to leave the meeting at any time and that no reprisal would
result from leaving or from his answers to the questions. Addi-
tionally, Pat O’Malley told Nelson that he had no problem with
him remaining an employee and working with him. Pat
O’Malley did ask Nelson why he had not previously ap-
proached anyone about safety issues. As required by the em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
ployee handbook, it was one of Nelson’s job duties to make
sure that unsafe situations did not exist and if they did exist, to
inform upper management, so they could be remedied.
Pat O’Malley told Nelson that he was concerned because if
the allegations were true, and remained uncorrected, it could
cause great harm to the Company including being closed down
by Cal-OSHA. In Nelson’s own testimony, he testified that he
knew Cal-OSHA could close a company due to violations. Pat
O’Malley also told Nelson that his main concern was to run a
safe company and would make changes to do so but he needed
to know what changes to make. However, when Nelson was
asked what the specific safety concerns were, his answer was
vague. He merely made global statements for the Respondent
to look at the equipment.
Since Nelson was not indicating what the specific safety
concerns were, Pat O’Malley began to wonder if there truly
were any safety issues and decided to end the meeting. Pat
O’Malley then asked Nelson if there was anything else Nelson
wanted from Respondent, Nelson responded that he wanted to
be paid his deserved wage; referring to the Davis-Bacon pay
that Nelson believed he was owed. Pat O’Malley told him to
make a list of what he thought he was owed and the list was
received the next day.
Analysis
“It is well established that interrogation of employees is not
illegal per se.” Rossmore House, 269 NLRB 1176, 1177
(1984). Employer activity is prohibited under Section 8(a)(1)
of the Act if, after looking at the record as a whole, the activity
may reasonably be said to tend to restrain, coerce or interfere
with employee rights. Id.; see also Blue Flash Express, Inc.,
109 NLRB 591 (1954); American Freightways Co., 124 NLRB
146, 147 (1959); and NLRB v. Illinois Tool Works, 153 F.2d
811 (7th Cir. 1946).
Factors to consider about the questioning of an employee in-
clude the time, place, personnel involved, and information
sought. Blue Flash Express, Inc., supra at 594. In addition, the
employer must inform the employee of the purpose of the ques-
tioning, assure him that no reprisal will take place, and obtain
his participation on a voluntary basis; the questioning must
occur in a context free from employer hostility to union organi-
zation and must not be itself coercive in nature; and the ques-
tions must not exceed the necessities of the legitimate purpose
by prying into other union matters, eliciting information con-
cerning an employee’s subjective state of mind, or otherwise
interfering with the statutory rights of employees. When an
employer transgresses the boundaries of these safeguards, he
loses the benefits of the privilege. Johnnie’s Poultry Co., 146
NLRB 770, 775 (1964), enf. denied on other grounds 334 F.2d
617 (8th Cir. 1965).
The information sought by Pat O’Malley’s questioning was
directed at safety issues. Pat O’Malley informed Nelson that
his participation was voluntary, that he was free to leave and
that there would be no reprisals for his answers. The meeting
took place in an area that Nelson regularly used in his day-to-
day business. Those present included Pat O’Malley (who is the
president of Respondent Company), Kevin O’Malley (who
handles Cal-OSHA complaints), and a foreman (who will likely
have to answer to or verify the unsafe condition). I conclude
and find that these persons present were all either necessary, or
that it was not unusual for them to be present of this sort.
Discussions about safety are the type of employee/employer
interaction which may be expected to occur. Moreover, when a
company’s safety concerns are heavily regulated, such as in the
asbestos abatement industry, this should be an expected conver-
sation. To not address safety concerns in such an industry
would be remiss. Therefore, under all the circumstances, I find
and conclude that this does not demonstrate a reasonable ten-
dency to restrain, coerce, or interfere with Nelson’s Section 7
rights.
D. Allegations of Threats to Close Plant
Relevant Facts
Nelson testified that on November 19, 1998, he saw Kevin
O’Malley walking beside “several other Latino workers” and
he overheard him say “that it looked like [Respondent] was
going to have to close down the doors and lay everybody off
because of union complaints that were filed.”
Analysis
An employer has violated Section 8(a)(1) of the Act if its ac-
tion may reasonably be said to tend to interfere with the free
exercise of employee rights under the Act. American Freight-
ways Co., supra at 147 (citing NLRB v. Illinois Tool Works,
supra at 814.
In this case, the General Counsel has not given enough facts
to make a reasonable conclusion. Nelson’s testimony is the
only information on Kevin O’Malley’s statements. There is no
information concerning either the accuracy of the alleged
statement, or any of the circumstances under which it was
made. As Nelson did not hear any other part of the conversa-
tion, the circumstances of the statement are unknown, including
what may have been said prior to and after the statement. We
cannot even be certain that Kevin O’Malley’s words were not
spoken in direct response to a question from an employee.
Although Nelson could name three of the men who were a part
of the conversation, none were produced at trial to corroborate
the testimony or to provide further details about the statement.
Given Nelson’s inferior credibility, and obvious penchant for
exaggeration, I feel free to infer that the words he testified to
were the absolute worst that could be attributed by him to
Kevin O’Malley. I cannot draw any inference, pro or con, from
Pat O’Malley’s failure to comment upon or deny the words
attributed to Kevin O’Malley. However, I feel confident that,
whatever Kevin O’Malley actually said, his words were, at
worst, ambiguous. It is a fair reading that these words were
nothing more sinister or violative than that he gave accurate
information to employees. As a result, it cannot be found that
the evidence preponderates in favor of the version under which
a violation would be found. Ergo, this allegation must be dis-
missed.
E. Unfair Termination Allegation
Relevant Facts
The General Counsel alleges that Nelson was discharged due
to his protected concerted activity. Nelson testified that he had
A.S.I., INC. 73
spoken to other employees about Davis-Bacon pay and safety
concerns. However, Pat O’Malley testified to four reasons that
led him to believe that it was in Respondent’s best interest to
discharge Nelson regardless of the protected activity.
First, there was an incident on November 30, 1998. Nelson
was the Competent Person on a jobsite at Edwards Air Force
Base. It was a subcontracting job under Bird Roofing and Wa-
terproofing. The project superintendent at Bird Roofing,
Robert Garcia, was extremely upset that the Nelson and his
crew were working too slowly, forcing Bird Roofing to start
weatherproofing in order to avoid water damage instead of
completing the roof. Garcia credibly testified that he expressed
his frustration with Nelson, and then called Kevin O’Malley, at
which time Garcia requested that Nelson no longer work on any
future Bird Roofing contracts that he supervised.
Second, Garcia also later told Kevin O’Malley that he be-
lieved Nelson took, or stole, a posted notice on prevailing
wage rates from Bird Roofing’s trailer. It was Respondent’s
conclusion that this allegation was true. As Pat O’Malley testi-
fied, a substantial amount of Respondent’s business comes
from Bird Roofing. Pat O’Malley, therefore, has a clear finan-
cial interest in maintaining a good working relationship with
Bird Roofing. Respondent was worried that this, and the
above-mentioned incident, could damage, or ever sever, its
relationship with Bird Roofing, its major customer.
Third, Respondent bids a fixed price for each job. Therefore,
low production either decreases or cancels out Respondent’s
profits. As a result of the complaint regarding slow work pro-
duction, an audit of the jobs Nelson had worked on as Compe-
tent Person was conducted. Pat O’Malley credibly testified
that, “without exception, every job was below par.” By con-
trast, the same crew with a different Competent Person, had
higher production. Respondent thereby reasonably concluded
that it was losing money whenever Nelson was designated to
serve as the Competent Person.
Fourth, on December 3, 1998, Pat O’Malley asked Nelson
about the prevailing wage notice missing from the Bird Roofing
trailer. Nelson denied knowing about it and then asked about
his Davis-Bacon pay that was in dispute. Pat O’Malley testi-
fied that he told Nelson that Respondent would pay whatever
the Department of Labor determined he was owed. Nelson’s
response was, “Fine, I’m going to do what I have to do.”
Pat O’Malley credibly testified that Respondent does its best
to comply with Davis-Bacon pay rates, as it is a confusing
process. According to O’Malley’s credited testimony, Respon-
dent had no issues regarding paying the prevailing wage, if it
later found that it had erred in its original calculation. Addi-
tionally, Respondent was already cooperating with the Depart-
ment of Labor regarding Nelson’s complaint about the issue.
However, in recent months, Respondent had been inundated
with paperwork over the issue, and Pat O’Malley testified that
he felt Nelson had taken things too far by speaking about the
issue to the legal department at Vandenburg Air Force Base, a
valued business customer of Respondent. Pat O’Malley was
concerned about how that would affect the business relation-
ship with Vandenburg.
Although Pat and Kevin O’Malley had previously discussed
the possibility of discharging Nelson, it was after the December
3, 1998 conversation with Nelson that Pat O’Malley made that
decision final. At that time, he told the controller of Respon-
dent company, Tracy O’Malley, to prepare Nelson’s final
check.
On the morning of December 4, 1998, Pat O’Malley brought
another foreman with him and told Nelson that his employment
was no longer desired. Nelson responded that this would not
look good, given all the complaints he had filed. Later in the
day, Pat O’Malley received a call from a hospital emergency
room to inform him that Nelson was there, complaining of
work related injuries, such as nausea, headaches, and an injured
elbow from the day before. None of these alleged injuries had
previously been brought to the attention of Respondent.
Analysis
With respect to Nelson’s protected concerted activity, I will
not decide whether Nelson’s complaints regarding Davis-Bacon
pay or safety issues were valid or invalid. Instead, I find only
that it was shown by uncontroverted evidence that Respondent
eventually arrived at the conclusion that the safety complaints
were largely invalid, and that Nelson’s Davis-Bacon pay con-
cerns were jeopardizing the relationship of at least two of Re-
spondent’s customers (Bird Roofing and Vandenburg). Addi-
tionally, Respondent believed Nelson was not acting in good
faith and Respondent’s administrators spent an inordinate
amount of the time working on the Davis-Bacon pay issue.
Respondent was cooperating with the Department of Labor
investigation. Yet, all of this may not have been enough for
Nelson, as he would, “Do what I have to do,” instead of accept-
ing the determination of the Department of Labor.
With respect to the discharge itself, Section 8(a)(1) prohibits
an employer from interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights. Concerted
activity under Section 7 includes making Cal-OSHA com-
plaints and conduct aimed at attaining higher wages. Unico
Replacement Parts, 281 NLRB 309, 309 (1986), and A.N. Elec-
tric Corp., 276 NLRB 887, 889 (1985). Section 8(a)(3) also
prohibits employers from discriminating in regard to an em-
ployee’s “tenure of employment . . . to encourage or discourage
membership in any labor organization.” Under the causation
test established in Wright Line, 251 NLRB 1083 (1980), and
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), as modified in Director, Office of Workers’
Compensation Programs v. Greenwich Collieries, 512 U.S. 267
(1994), the General Counsel must make a prima facie showing
sufficient to support an inference that the employee’s conduct,
here making safety and Davis-Bacon pay complaints, motivated
the employer’s adverse action.
To sustain his initial burden, the General Counsel must show
(1) that the employee was engaged in protected activity, (2) that
the employer was aware of the activity, and (3) that the activity
was a substantial or motivating reason for the employer’s ac-
tion. Motive may be demonstrated by circumstantial evidence
as well as direct evidence and is a factual issue which the ex-
pertise of the Board is peculiarly suited to determine. Naomi
Knitting Plant, 328 NLRB 1279 (1999) (citing FPC Moldings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enf. 314 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
1169 (1994) (citations omitted)); see also Meyers Industries,
281 NLRB 882 (1986).
If the General Counsel establishes a prima facie case, the
employer then has the burden of persuading the trier of fact by
a preponderance of the evidence that the same adverse action
would have been taken even in the absence of the employee’s
protected activity. Best Plumbing Supply, 310 NLRB 143
(1993); Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
Applying the foregoing principles to the facts of this case, I
find that the General Counsel has made a weak prima facie case
of discriminatory discharge established only through the fact
that Nelson did file safety and Davis-Bacon pay complaints
with various government agencies. However, as Nelson’s tes-
timony has been largely, if not wholly, discredited, it remains
questionable whether these acts are protected concerted activ-
ity.
Concerted activity encompasses “those circumstances where
individual employees seek to initiate or to induce or to prepare
for group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers
Industries, supra at 887. Despite the contention that Nelson
spoke to other employees daily about these issues, the General
Council has brought forth no witness to support it leaving the
contention to rest solely on Nelson’s discredited word. I also
find it implausible that Nelson ever spoke to Respondent, prior
to November 18, 1998, about any safety concerns. Such a
claim conflicts sharply with the swift response by Respondent
when safety concerns were otherwise brought to its attention.
Such swift responses include speaking to and writing a memo-
randum about Nelson when he failed to take air samples as
required by Cal-OSHA and the immediate concern when safety
issues were mentioned in the notice of complaint against the
Union.
However, despite my finding that the General Counsel has
established a weak prima facie case, here the Respondent has
met its burden of rebutting that case, by showing clear and
convincing evidence of the actions which Respondent would
(and should) have taken regardless. I credit the claims of Pat
O’Malley that Nelson was fired for working at an unprofitable
level, stealing from the property of customers, failing to inform
management as required of any safety hazards, and unnecessar-
ily disturbing relationships with customers that could signifi-
cantly affect Respondent’s business.
Thus, on the basis of the foregoing credited testimony, I find
that Nelson’s discharge has not been shown by a preponderance
of the credibly to have been motivated by Nelson’s joining or
assisting the union, or his engagement in protected concerted
activity, or in order to discourage employees form engaging in
these activities.
Therefore, I find and conclude that Respondent has not been
shown to have violated Section 8(a)(1) and (3) of the Act in any
respect.
CONCLUSIONS OF LAW
1. Asbestos Services (Respondent), is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Heat & Frost Insulators & Asbestos Workers, Local 5 (the
Union), is a labor organization within the meaning of Section
2(5) of the Act.
3. The General Counsel has failed to prove by a preponder-
ance of the credible evidence that Respondent interrogated an
employee. Therefore, the General Counsel has failed to prove
that Respondent interfered with, restrained, or coerced employ-
ees in the exercise of the rights guaranteed in Section 7 of the
Act and in violation of Section 8(a)(1) of the Act.
4. The General Counsel has failed to prove by a preponder-
ance of the credible evidence that Respondent threatened em-
ployees. Therefore, the General Counsel has failed to prove
that Respondent interfered with, restrained, or coerced employ-
ees in the exercise of the rights guaranteed in Section 7 of the
Act and in violation of Section 8(a)(1) of the Act.
5. In regards to the discharge of the employee, Respondent
has met its burden by persuading the trier of fact by a
preponderance of the credible evidence that the same adverse
action would have been taken even in the absence of the
employee’s protected activity. Respondent has therefore not
violated Section 8(a)(1) and (3) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint should be, and it is, dismissed in its entirety.

1 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.