Baker Concrete Construction

National Labor Relations Board - Board Decisions

Apr 19, 2004

341 N.L.R.B. 598 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
Baker Concrete Construction, Inc. and South Florida
Carpenters Regional Council, United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO. Case 12–CA–22027–1
April 19, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On February 10, 2003, Administrative Law Judge
George Carson II issued the attached decision. The Gen-
eral Counsel filed exceptions, a supporting brief, and a
reply brief. The Respondent filed an answering brief to
the General Counsel’s exceptions.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We agree with the judge that the Respondent did not
violate Section 8(a)(1) of the Act by interrogating employ-
ees about their protected concerted and/or union activities
or by threatening them with discharge. With respect to the
alleged threat of unspecified reprisals for engaging in un-
ion and/or protected concerted activity, it appears, al-
though it is not free from doubt, that the judge credited
Marta DeLeon’s testimony that the Respondent’s superin-
tendent, Keith Kelly, told her at a safety meeting on De-
cember 28, 2001, “stay away all these people; because if
you no stay away these people, you have trouble [sic].”
The General Counsel does not allege that the Kelly
statement constituted an order that DeLeon stay away
from “these people.” Rather, the General Counsel asserts
that the Respondent was threatening reprisals [“trouble”] if
DeLeon did not stay away from “these people.” We as-
sume arguendo that “these people” referred to union offi-
cials or supporters. However, it is far from clear that Kelly

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We agree with the judge, for the reasons stated in his decision, that
the Respondent’s layoff of six employees did not violate Sec. 8(a)(3),
because the Respondent showed that it would have laid them off be-
cause of their lack of skills even in the absence of their union or pro-
tected concerted activity. There were no exceptions filed to the judge’s
finding that the General Counsel had established a prima facie case. See
Wright Line, 251 NLRB 1083 (1980).
was saying that the Respondent would be the source of
that trouble.
Nor has the General Counsel established that an em-
ployee would reasonably construe the statement as mean-
ing that the Respondent would be the source of such trou-
ble. Accordingly, we find that the statement was not a
threat of reprisal in violation of Section 8(a)(1), and it was
not an indicium of antiunion animus on the part of the
Respondent.2
We find no merit in the General Counsel’s argument
that the judge should have found that Supervisor John Lai-
bang unlawfully informed employee Wilder DeLeon that
he would fire anyone he saw eating before lunchtime. The
complaint contained no such allegation. Moreover, when
the parties stipulated to Laibang’s supervisory status, they
also stipulated that no unfair labor practice was being at-
tributed to him. In these circumstances, we agree with the
Respondent that it would be improper to find a violation
based on Laibang’s statement.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

John F. King, Esq., for the General Counsel.
Andrew S. Hament and A. Anthony Giovanoli, Esqs., for the
Respondent.
George S. Aude, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Miami, Florida, on December 4 and 5, 2002. The
charge, filed on January 18, 2002, was amended on February
25, April 24, May 31, and June 25, 2002. The complaint issued
on June 27, 2002. The complaint, as amended at the hearing,
alleges that the Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act by interrogating and threatening
employees and violated Section 8(a)(1) and (3) of the Act by
2 Member Liebman disagrees that Kelly’s statement was “much too
vague” as the judge found to constitute an unlawful threat of unspeci-
fied reprisal, or “far from clear” as my colleagues find. In her view,
Kelly sufficiently conveyed his annoyance with the Union (and the
agitation for a break) and his statement had a reasonable tendency to
coerce DeLeon in her exercise of Sec. 7 rights. Indeed, the judge him-
self states that Kelly was upset with DeLeon because she had raised the
issue of a break at a December 28 safety meeting; that he “immediately
confronted her, cursed the Union, to which he incorrectly attributed the
request for a break,” and told her, “the only person who spoke at the
meeting, to ‘stay away’ from ‘these people’ or she would ‘have trou-
ble.’” Further, as the judge describes, there were about 40 employees
at the meeting, and from 10 to 25 supported her suggestion for a break.
Kelly’s message to M. DeLeon seems clear: stay away from these
people agitating for a break (either the Union or the 10–25 at the meet-
ing) or she would be in trouble with him, or with management in gen-
eral. Ironically, the judge himself, in analyzing the discharge allega-
tions, found that Kelly’s statement established animus.
341 NLRB No. 80
BAKER CONCRETE CONSTRUCTION, INC. 599
laying off and/or discharging six employees because of their
protected concerted and union activities. The Respondent’s
answer admits that it discharged the six employees but denies
that it violated the Act. I find that the evidence does not estab-
lish that the Respondent violated the Act.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
The Respondent, Baker Concrete Construction, Inc., the
Company, is a corporation engaged in the building and con-
struction industry as a general contractor at various locations
including its jobsite at the Miami International Airport, Miami,
Florida. During the past 12 months, the Company purchased
and received at its Miami jobsite goods and materials valued in
excess of $50,000 directly from points located outside the State
of Florida. The Company admits, and I find and conclude, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that South
Florida Carpenters Regional Council, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO (the Union), is a
labor organization within the meaning of Section 2(5) of the
Act.
ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The case involves the termination of six alleged discrimi-
nates from the Company’s jobsite at the Miami International
Airport. General Superintendent Larry Mitchell was in charge
of all work at the Miami International Airport. Work is per-
formed on the site inside the airport perimeter and also in an
area outside the airport perimeter that is referred to as the yard.
Keith Kelly, who was classified as a superintendent, reported to
Mitchell. General Foreman Jose Estrada, like Kelly, reported
directly to Mitchell.
All of the six alleged discriminates were hired in mid-
December 2001, and all of them were terminated on January 4,
2002.2 The Company does not give employees a formal morn-
ing break period. On or about December 20 or 21, employee
Marta DeLeon, who was a security employee and who was not
terminated, spoke at lunchbreak with a group of employees that
included five of the six alleged discriminatees about seeking a
formal 15-minute morning break. She stated that she would do
so at a safety meeting that was to be held on December 28 and
asked for their support. On December 28, after Project Safety
Manager John Williams made his presentation regarding safety,
Superintendent Keith Kelly asked if there were any questions.
Marta DeLeon asked about a break. A number of employees
nodded approval, raised their hands in a show of support, or
murmured. Kelly responded to Marta DeLeon. Testimony var-
ies regarding what he said. There is also conflicting testimony

1 GC Exh. 2, submitted after the close of the hearing pursuant to my
order at the hearing, is received.
2 All dates in December are in 2001 and all dates in January are in
2002 unless otherwise indicated.
relating the signing of a list by those employees who desired a
formal 15-minute break.
The sixth alleged discriminatee, Wilder DeLeon, was not
present in the group on December 20 or 21, nor was he present
at the safety meeting. Although Wilder DeLeon and Marta
DeLeon are husband and wife, marital status is not sought on
the Company’s employment application and neither disclosed
this fact. When not stating their full names, this decision will
refer to Wilder DeLeon as W. DeLeon and to Marta DeLeon as
M. DeLeon.
The Company admits that it discharged the alleged discrimi-
natees and contends that it did so because of their inability to
perform the work they were assigned. It denies that they were
discharged because of union activity or protected concerted
ctivity.
B. Facts
The Company hires by word of mouth. Alleged discrimina-
tees Oscar Cabrera and Carlos Dinarte learned that the Com-
pany was going to begin work at Miami International Airport
from Rene Ramos. Cabrera knew Ramos when they both
worked for the Company on a job at the Fort Lauderdale Air-
port. General Foreman Estrada had been a foreman at that job-
site before coming to the Miami International Airport in No-
vember 2001 as general foreman, but he did not know Cabrera.
Ramos had been Dinarte’s foreman at a different company.
Alleged discriminatees Carlos Montero and Wilder DeLeon
both heard of the job from friends. Alleged discriminatee Can-
talicio Bustillo did not testify regarding how he heard about the
job. Alleged discriminatee Juan Jose Lopez-Garcia did not
appear as a witness.
Oscar Cabrera and Jose Montero had worked as carpenters
for 10 years and had been members of the Union for 5 years
when they were hired. Cantalicio Bustillo testified that he had
worked as a carpenter for 5 years and had been a member of the
Union for 4 or 5 years. Despite this, he applied for a job as a
laborer. Wilder DeLeon became a carpenter in 1990 and joined
the Union in 1999. The record does not reflect whether Cabrera
and Montero were certified as journeymen. W. DeLeon testi-
fied that he was “certified,” but he did not go through the Un-
ion’s apprenticeship program. Carlos Dinarte was not a member
of the Union. He had worked for the Company on a job at the
Dolphin Mall for over a year, from late 1999 until March 2001.
There is no evidence that alleged discriminatee Lopez-Garcia
was a union member.
Both General Superintendent Mitchell and General Foreman
Estrada had formerly been members of a Carpenters Union.
Mitchell had been a member of a local in Fort Worth, Texas,
for 4 or 5 years in the 1970s. Estrada had been a member of a
local in Orlando, Florida, and worked on a union job at Cape
Canaveral in 1998. He has a carpenters’ union sticker on the
back of his hardhat.
Dale Bretting, an engineer, coordinated the Company’s hir-
ing process. General Superintendent Larry Mitchell explained
that the Company would determine its manpower needs and
then canvass the applicants who would gather at the jobsite.
“They would raise their hands and tell us they were carpenters
or laborers, whichever one we was hiring.” Bretting would read

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
over the applications and fill the available positions. According
to Mitchell, the Company would then “put them to work, and
give them a try, see how they worked.” Estrada reiterated this,
explaining that they were “just hiring people who was showing
up . . . We did not know their quality of work.”
On the day that Cabrera applied, he filled out paperwork and
took a drug test. The following day he attended a security and
safety briefing. He began work the next day. On the day
Dinarte applied, he filled out paperwork and took a drug test.
He did not mention a safety or security briefing and recalls
beginning work the following day. Montero recalled beginning
work the day that he applied. Neither Bustillo nor Wilder
DeLeon were questioned regarding how long after they applied
they actually began work. The applications of all alleged dis-
criminatees, except that of Bustillo, are dated December 13.
Bustillo’s application is dated December 11.
General Foreman Estrada explained that the construction at
the Miami International Airport was complicated; there were
slopes and ramps that were “different than most buildings.”
Employees were dealing with different thicknesses of slabs and
depths of beams. The carpentry work was “not square, it’s on
an angle.”
At least a week before January 4, Estrada informed Mitchell
that he had some carpenters that he needed to get rid of because
they were not able to perform the carpentry work needed on the
job and that he “was not satisfied with their work.” According
to Mitchell, Estrada did not “like doing his work two or three
times. He likes it done right and get away from it.” Estrada
identified the employees he wanted to release and Mitchell told
him that he had to keep them even if that meant assigning them
laborers’ jobs, “because it would take too long to get other
people in to replace them.” Estrada also noted that Dale Bret-
ting said that he did not have time to take the employees off the
site. General Superintendent Mitchell confirmed that he told
Estrada that “we had to wait till we could get other people in
before we could let anybody go,” and it was upon Mitchell’s
order that the employees were actually terminated. Mitchell
normally meets with his foremen in the morning, just as work is
beginning. Although neither Estrada nor Mitchell was able to
place the exact date or time of their conversation, Estrada
placed it at least a week before the terminations.
Employees were not given a formal morning break, but did
have a formal lunch break. At lunch on December 20 or 21, a
group of employees that included all alleged discriminatees,
except for Wilder DeLeon who was working in the yard, en-
gaged in a discussion relating to a morning break. Although
each alleged discriminatee placed himself in that discussion,
each omitted the name of at least one of the other discrimina-
tees as being present and Dinarte named employee lvo Saldivar
as being present. Other employees who were not named were
also present. According to employee Marta DeLeon, the issue
of a morning break arose because the employees wanted “to eat
something in the morning.” Although M. DeLeon, who was a
security employee and not a member of the Carpenters Union,
recalls stating, [T]he Union will give it [a 15-minute break] to
them,” no employee corroborated that testimony. All witnesses
who testified regarding this conversation confirmed that M.
DeLeon stated that she intended to raise the issue of a morning
break at a safety meeting scheduled for December 28 and that
she asked if they would support her. All committed to do so.
Although Dinarte testified that he observed General Foreman
Estrada walk by, no other participant in the discussion men-
tioned seeing him. Even if he did walk by, there is no probative
evidence that Estrada or any other supervisor heard or was
aware of the nature of the employees’ discussion.
On December 28, after Project Safety Manager John Wil-
liams completed his safety presentation, Superintendent Keith
Kelly asked if there were any questions. M. DeLeon asked
Kelly “if he was going to give us a 15 minute break” and, ac-
cording to her, Kelly said, “Bullshit.” M. DeLeon recalls that
“all the workers shook their heads supporting me that they
wanted the fifteen minutes.” According to M. DeLeon, Kelly
then directed General Foreman Jose Estrada “to get a piece of
paper, and write down the name[s] of the people that wanted a
15 minute break.” She testified that she followed Estrada and
asked him why he had to write down the names. Estrada pur-
portedly replied, “[B]ecause I think they want to know who
wants the fifteen minutes so they can fire them.” M. DeLeon
testified that Kelly motioned with his index finger for her to
approach him. She did so. According to M. DeLeon, Kelly
stated to her, in English, “[F]–k the Union. The 15-minute
break is coming from the f–king Union. This is all bullshit. And
listen, Friday I have good layoff for these people, for no come
back no more definite.” When repeating this testimony, M.
DeLeon phrased the layoff comment as “Friday I give you good
layoff, definite,” and added that he told her to “stay away all
these people, because if you no stay away these people, you
have trouble. Friday Layoff. Definite.” In a pretrial affidavit,
DeLeon did not mention Kelly’s purported direction that
Estrada make a list and she placed the conversation with
Estrada as occurring when she was returning to work. Despite
purportedly hearing Estrada refer to firing, M. DeLeon claims
that she signed the list. She observed others, more than five,
sign the list, but she did not name any of the alleged discrimina-
tees as having signed the list.
Marta DeLeon testified that, at the point she had the forego-
ing converstion with Kelly, she liked him and believed that he
made the foregoing statement to her because he wanted a closer
relationship with her. At some point after the employees were
terminated on January 4, M. DeLeon asked Kelly why the em-
ployees had been laid off, and he replied that he “had gotten rid
of that shit and that there were other people waiting in the yard
for work.” Also, after the layoff, M. DeLeon testified that Kelly
made unwanted sexual advances towards her. She reported this
to Estrada who reported Kelly’s conduct to Safety Manager
John Williams. Thereafter, management officials from com-
pany headquarters in Ohio became involved. M. DeLeon was
terminated on February 27, 2002. Kelly’s employment ceased
in May 2002, and the record does not reflect the circumstances
of his leaving. M. DeLeon has filed charges with the Equal
Employment Opportunity Commission relating to her termina-
tion. There is no allegation relating to discrimination against M.
DeLeon because of her actions on December 28.
Bustillo recalls that Kelly responded to M. DeLeon stating
that “they would consider it in the future . . . [and] they could
carry a bag with something . . . and eat, and just continue work-

BAKER CONCRETE CONSTRUCTION, INC. 601
ing and eat, that he had no objection to that, but that, you know,
there were no set time for breaks.” Bustillo observed that 15 or
20 employees raised their hands “as a sign of support” when M.
DeLeon asked about the 15-minute break. He recalled that, as
the meeting ended, “they wrote several names” on a list and
that he assumed his name was on the list. Although Bustillo
recalled that the individual making the list was a “leadman
foreman” named Jose, he twice testified specifically that it was
not General Foreman Jose Estrada. Estrada was present as the
Respondent’s representative at counsel’s table when Bustillo
testified, and Bustillo knew who Estrada was. Estrada denied
having anything to do with a list, and Bustillo’s testimony is
consistent with that denial. Bustillo also recalled M. DeLeon
asking the unidentified leadman foreman “what was the list,”
and that the individual responded in Spanish. The official inter-
preter at the hearing translated Bustillo’s testimony of that re-
sponse as, “[T]hat’s for the people that are asking for the
break.” Counsel for the Charging Party stated that Bustillo had
used the Spanish words “se va” in his answer which, he as-
serted, would translate “are going” or “are going to be going.”
Regardless of what the unidentified leadman foreman said,
there is no allegation or evidence that he was a supervisor.
Montero recalled that Kelly stated that he “didn’t like the
idea of the fifteen minutes,” but that he then said that “everyone
that wants the fifteen minutes, sign this list of paper that they
pulled out there.” The paper was “laying on top of something
that was there.” Montero recalls no supervisors standing near
the list. He signed the list and, when doing so, observed about
10 names on the list. He did not observe anyone else as they
were signing the list.
Dinarte attributed the safety briefing to Kelly. Notwithstand-
ing that misidentification, when Kelly asked if there were any
questions, he recalls that M. DeLeon asked, “If we can get the
fifteen minutes, all of the workers need it.” He observed that 12
to 15 people raised their hands in support of the request includ-
ing Montero, Cabrera, Bustillo and lvo Saldivar, who is not
alleged as a discriminatee and who was not terminated. In tes-
timony uncorroborated by any other witness, Dinarte asserted
that Marta DeLeon “showed her shirt,” apparently by unzipping
the jacket she was wearing, and displaying a shirt bearing the
Carpenters Union logo. According to Dinarte, Kelly said, “F–k
[the] Union” and “Bullshit Union.” He called M. DeLeon aside
and announced that that “the meeting was finished and that
everyone go back to work.” Dinarte observed Kelly speaking
with M. DeLeon on the side “where they have the blueprints.”
As Dinarte was about to start working, he testified that Estrada
approached him carrying a pad and asked if he wanted the 15
minutes. Dinarte replied that he did and he “signed that [pad].”
Cabrera recalls that, when M. DeLeon spoke, Montero,
Bustillo, Dinarte, Lopez-Garcia, he, and other employees, a
total of 10 to 12, supported her by raising their hands. Accord-
ing to Cabrera, Kelly thereafter said “a bad word.” Upon being
asked what the bad word was he answered, “something like
fuck the Union, something like that.” Cabrera acknowledged
that, in a pretrial affidavit, when describing Kelly’s response he
stated, “Keith [Kelly] said that they would not be able to give
us the fifteen minute breaks. He said that maybe in the future
we might get fifteen minute breaks, but at the moment, no.
Keith was speaking in English . . . [An interpreter] translated
into Spanish. Keith said that the meeting was over.” Cabrera
testified “that other things . . . are the truth,” noting that the
interpreter would not translate a bad word and thereby implic-
itly suggesting that the affidavit did not address anything he
heard in English that was not translated. When asked whether
Kelly said anything else, Cabrera answered, “No, only he just
said to go back to work.” Thus, Cabrera, like Dinarte, did not
testify that Kelly said anything about a list at the meeting.
Cabrera testified that Estrada, although not saying anything,
was going around with a list “to sign for about the 15 minutes”
and that he, Cabrera, signed it. When he did so, he observed
about 10 or 12 names on the list but did not look to see who had
signed.
The Company presented employees Albert Camps, Jose
Meza, Jose Gomez, and Mario Monge, all of whom were pre-
sent at the meeting on December 28. None of these employees
heard Kelly use any improper language, observed any employ-
ees raising their hands in support of M. DeLeon’s comments, or
knew anything about any list. Gomez recalled that, when M.
DeLeon raised the issue of a break, there was a “murmur” but
no one said anything.
M. DeLeon did not testify to wearing a shirt with a union
logo nor did she attribute any statement relating to the Union to
Kelly in the meeting. No witness other than Dinarte testified to
M. DeLeon “showing her shirt,” and I do not credit that testi-
mony. Cabrera, who testified through an interpreter, thought
that the bad word he attributed to Kelly was “something like
fuck the Union, something like that.” No witnesses other than
Dinarte and Cabrera attributed any statement relating to the
Union being made in the meeting by Kelly. I do not credit their
testimony in that regard. Whether Kelly reacted to the request
for a 15-minute break by saying “bullshit” is immaterial. No
threat is alleged to have accompanied the word.
M. DeLeon was the only witness who testified that Kelly di-
rected Estrada to make a list of employees who wanted a 15-
minute break. Montero recalls that Kelly pulled out a piece of
paper and invited any who wanted to sign to do so. Bustillo
placed the list in the hands of a leadman foreman, not Estrada.
He overheard M. DeLeon speak with that individual. M.
DeLeon’s pretrial affidavit makes no mention of Kelly’s pur-
ported direction to Estrada and places her alleged conversation
with him as occurring when she was returning to work, which
presumably would have been after her conversation with Kelly.
That is consistent with Dinarte’s testimony that Kelly called M.
DeLeon aside just before dismissing the meeting. Estrada de-
nied threatening employees with discharge or layoff or having
anything to do with any list. Bustillo overheard the conversa-
tion between M. DeLeon and the leadman foreman named Jose.
Although there is some question regarding the translation of
what the leadman foreman, who was not Estrada, said, M.
DeLeon testified to only one conversation relating to the list,
the purported conversation in which she attributed the “so they
can fire them” statement to Estrada. M. DeLeon, although at-
tributing the discharge threat to Estrada, claimed that she
signed the list. I find it incomprehensible that M. DeLeon
would sign a list immediately after having supposedly being
told that employees who signed were going to be fired. I do not

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
credit M. DeLeon’s uncorroborated testimony that Estrada was
directed to make a list and that she spoke to him. I find that she
spoke to the leadman foreman and that Bustillo overheard that
conversation. I find further that she did not perceive whatever
comment the leadman foreman made to be a threat since she
signed the list. I credit Estrada that he had nothing to do with
any list.
In crediting Estrada’s denial that he had anything to do with
a list, I do not credit Dinarte’s testimony that Estrada ap-
proached him and asked whether he wanted to sign the list. I
have little confidence in Dinarte’s recollection of observations
to which no other employee testified or his identification of
individuals as reflected in his attribution of the presentation of
the safety briefing to Kelly rather than Safety Manager Wil-
liams. Similarly, I do not credit the testimony of Cabrera that it
was Estrada, who Cabrera testified did not speak, who was
carrying the list that he signed.
On January 4, a week after the foregoing meeting, the al-
leged discriminatees were terminated. Estrada recalled no em-
ployee asking why he was being terminated. Only Dinarte con-
tradicts this testimony, testifying that he did ask Estrada why he
was being let go and was told to shut up. Whether the transac-
tion occurred as reported by Dinarte is not material. Bustillo
recalls that Lopez-Garcia, who was acting as translator for the
employees, asked and “the answer that they gave him was that
there was a reduction in personnel.” Montero asked Richard
Wendell, his immediate foreman, why he was being let go and
Wendell replied, “we’re letting go of people, but we’re going to
give jobs within two weeks.” As Montero and the others who
had been separated were being processed out, Montero encoun-
tered Kelly and asked why he was being terminated. Kelly re-
plied that “he had no control over that.” Wilder DeLeon, who
was working in the yard, was told by his foreman, John Lai-
bang, he had to let W. DeLeon and “the other guy” go “because
they told me that we had too many people.”
Estrada explained why he had recommended to Mitchell that
each of the alleged discriminatees be terminated.
Estrada recommended that Bustillo, who had applied and
been hired as a laborer, be terminated because he was “very
slow at moving, and he would talk to people too much.”
Estrada did not recall the names of the employees with whom
he saw Bustillo talking. Although not hired as a carpenter,
Bustillo testified that, on an occasion upon which Estrada di-
rected him to help with decking, that he “took advantage of the
opportunity to let him [Estrada] know that I [Bustillo] was a
carpenter. So I pulled out my union card and I showed it to
him.” When asked whether Estrada reacted in any way when he
did this, Bustillo answered, “He ignored it.”
Oscar Cabrera was initially assigned do deck work. Decking
involves setting aluminum on top of the scaffold and then cut-
ting plywood to fit and placing it on top of the aluminum.
Estrada observed that Cabrera could not do the work, and he
assigned him to setting beam forms and building scaffolds.
Setting beam forms requires constructing forms with the proper
dimensions as set by engineering and then placing kickers
properly “so that the forms will hold the pressure of the con-
crete.” Estrada recalled speaking with Cabrera several times
about his work. He noted one occasion upon which he told him
the measurement for a beam side and then observed that
Cabrera “was counting the lines on the tape measure. To me,
that is not a carpenter at all.”
Cabrera testified that, after December 28, Estrada would not
speak to him, that there was “a dramatic, great change with
respect to me” in that Estrada would ignore him. On cross ex-
amination, Cabrera admitted that, prior to December 28, he
spoke with Estrada only “occasionally” and, after December
28, Estrada “would hardly speak to me.” Cabrera denied that
Estrada had criticized his work before December 28 but that,
after December 28, Estrada would speak in plurals, stating, “All
these carpenters are no good.” Regarding criticism of Cabrera’s
work, Dinarte initially denied hearing Estrada tell Cabrera that
the work he was doing was no good and reassigned him to an-
other job. On redirect examination, Dinarte effectively admitted
Estrada’s criticism of Cabrera when he testified that Cabrera’s
reassignment occurred after December 28. On January 3,
Cabrera was injured on the job. Thereafter he filed a workers
compensation claim. That claim has been settled. The settle-
ment states: “Employee has alleged that his employment was
terminated on January 4th, 2002 by Employer, due to em-
ployee’s allegation of an injury occurring during the course of
his employment.” The settlement specifically exempts any
potential liability resulting from this proceeding from the scope
of the settlement.
Estrada stated that Dinarte was not able to satisfy him with
his carpentry, that he was not accurate with his measurements
and did not “put the kickers right on the forms.” Dinarte denied
having his work or pace of work criticized, but did admit that
Estrada reassigned him to the job of “pulling jacks.” From
Dinarte’s description, a jack is critical to the construction proc-
ess since it is used “to hold the walls.” According to Dinarte,
pulling jacks is a two person laborers’ job, and he protested the
assignment, stating that he was a carpenter. He recalls that
Estrada told him to shut up because “he was my boss.” Thereaf-
ter, Dinarte testified that he heard Estrada saying that “all the
carpenters were . . . shit carpenters.” Dinarte placed his reas-
signment contemporaneously with his signing the list favoring
a 15-minute break. The reassignment is not alleged as an unfair
labor practice. At some point after his reassignment, Dinarte
began working with Cabrera. On January 3, Dinarte gave a
written statement supporting Cabrera’s version of his accident.
On January 4, Dinarte testified that he tripped and fell, injuring
his leg and back. Cabrera was a witness. Dinarte reported his
fall to Estrada who, according to Dinarte, ignored him and as-
signed him to work with a foreman identified as Pablo who
assigned him light duty for the remainder of the day.
Dinarte was terminated that afternoon and filed a workers’
compensation claim alleging that he was terminated for report-
ing an accident.
Estrada testified that Carlos Montero was unable to perform
decking work and that he, therefore, limited Montero to scaf-
folding work for the duration of his employment. Montero ef-
fectively acknowledged that Estrada was dissatisfied with his
performance, testifying that he showed Estrada his union card
in an effort to establish that he was competent because Estrada
“thought that we didn’t know how to work, that we didn’t know
what we were doing, and I knew what I was doing.” When

BAKER CONCRETE CONSTRUCTION, INC. 603
asked if Montero reacted to the presentation of his union card,
Montero replied, “No, because . . . he just stayed very calm.” In
later testimony regarding his work, Montero explained, “A lot
of carpenters have different ways of working. I have my ways,
and it’s like that.”
Regarding Wilder DeLeon, Estrada recalls that he gave him
“certain measurements for him to cut a form,” and that when he
checked upon his progress he observed “another carpenter
showing him the same thing that I showed him.” Estrada asked
W. DeLeon why he had sought assistance and he explained that
he “did not know what he was doing.” W. DeLeon denied that
Estrada criticized his work, noting that Estrada “had a bad atti-
tude with the others, but not with me.” Notwithstanding the
alleged absence of criticism, W. DeLeon acknowledged that
after working for Estrada for one day, “the first day inside the
field,” he thereafter worked in the yard under Foreman John
Laibang, referred to as “Papa John,” constructing beam bot-
toms. Although General Superintendent Mitchell acknowledged
that it would be unusual for Estrada to recommend the termina-
tion of an employee that he did not directly supervise, Estrada
explained that he recommended that W. DeLeon be terminated
because the job he was doing in the yard was temporary, that
the “carpenters that were in the yard [building beam bottoms],
they were going to get transferred . . . to work in the field [i.e.,
inside the perimeter]” under Estrada’s supervision.
DeLeon testified that, on an unspecified date sometime after
being assigned to the yard, he wore a T-shirt, presumably a
union T-shirt, and that Foreman Laibang asked if he was a
member of the Union. W. DeLeon replied affirmatively and
also showed him his union card. According to W. DeLeon,
Foreman Laibang turned away from him and said “f–k the Un-
ion.” Although Foreman Laibang had turned away, W. DeLeon
testified that he continued to speak, saying to Foreman Laibang
that “we all wanted” a 15-minute break and that Foreman Lai-
bang responded that “we were getting paid $19.50, and if he see
anybody eating before lunchtime, he was going to fire any-
body.” Although W. DeLeon testified that he used the word
“we,” the record does not establish that he was speaking on
behalf or anyone other than himself or that there was any basis
upon which Foreman Laibang could conclude that W. DeLeon
was speaking on behalf of anyone other than himself.
Although Lopez-Garcia did not testify, Estrada was ques-
tioned regarding the reason for his termination. He explained
that Lopez-Garcia “would talk to people too much,” was very
slow, and “was not able to do carpentry work.”
Cabrera had previously been employed at the Company’s
Fort Lauderdale Airport jobsite, and Dinarte had been em-
ployed at the Dolphin Mall. Estrada explained that, at Fort
Lauderdale, the decking was “from precast joist to precast joist,
. . . all the same dimensions.” At the Miami International Air-
port, “the depth of the beams was different, . . . [the carpenters]
would have to be using the tape measure all day long with dif-
ferent measurements, . . . not just . . . one measurement all the
time.” General Superintendent Mitchell concurred that the work
at the Miami International Airport was more complicated. He
noted that, of the three jobs about which there was testimony,
the Dolphin Mall, where employee Dinarte had been employed,
was the “easiest, because it’s slab on grade” and that the Fort
Lauderdale job “was basically beam bottoms, beam sides, and
the precaster took it from there.”
A total of eight employees were terminated on January 4,
2002, the six alleged discriminatees, Enrique Avila who was
withdrawn from the complaint at the conclusion of the General
Counsel’s case, and Anthony E. Coffee who documentary evi-
dence reflects was discharged for substandard work.
Two new carpenters and a laborer were hired on January 7
and three additional carpenters were hired on January 14.
Estrada acknowledged that it was possible to process an em-
ployee onto the job in a single day; however, the testimony of
Cabrera establishes that the normal procedure was completion
of paperwork and a drug test on one day and attending a safety
and security briefing the next day. The week ending January 4
included New Year’s Day, which was observed as a holiday.
Counsel for the General Counsel argues that the foregoing hire
dates undercut the testimony that the terminations should be
delayed a week in order to obtain replacements. I find no sig-
nificance in the failure of the Company to have succeeded in
replacing all of these employees in a single week. The General
Counsel’s argument might well have merit if the protected con-
duct had occurred on January 4, but the evidence establishes
that the protectred conduct was on December 28. Even if I were
to accept the General Counsel’s argument that there was “a
delay . . . [in the terminations] to cover up the true reasons” for
them, the time lapse between the precipitating event and the
terminations would be the same. Thus, whether the Company
terminated eight employees because of substandard work or, in
the case of the six alleged discriminatees, because of conduct
protected by the Act, the decision was made on or before De-
cember 28. The fact that the Company did not succeed in im-
mediately hiring a full complement of replacement workers
proves nothing.
C. Analysis and Concluding Findings
1. The 8(a)(1) allegations
The complaint alleges that General Foreman Estrada, on or
about December 28, interrogated employees about their union
and/or, protected concerted activities and threatened employees
with discharge in retaliation for their union and/or protected
concerted activities. There is no evidence of any interrogation.
The only witness who attributed a threat of discharge to Estrada
was Marta DeLeon and, as discussed above, I have not credited
that testimony. I shall recommend that these allegations be
dismissed.
Superintendent Kelly is alleged to have, on December 28,
interrogated employees, threatened employees with layoff in
retaliation for their union and/or protected concerted activities,
and threatened employees with unspecified reprisals in retalia-
tion for their engaging in union and/or protected concerted
activities. There is no evidence of any interrogation by Kelly.
The remaining allegations are dependent upon the testimony of
M. DeLeon. According to M. DeLeon, Kelly stated to her, in
English, “[F]–k the Union. The 15-minute break is coming
from the f–king Union. This is all bullshit. And listen, Friday I
have good layoff for these people, for no come back no more
definite.” In repeating this latter comment, M. DeLeon testified

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
that Kelly said, “Friday I give you good layoff, definite,” and
added, “[S]tay away all these people, because if you no stay
away these people, you have trouble. Friday. Layoff. Definite.”
Counsel for the Respondent argues that I should not credit the
foregoing testimony. Counsel for the Charging Party argues
that I should draw an adverse inference from the failure of the
Respondent to present Kelly; however, it is inappropriate to
make an adverse inference on the basis of absence of testimony
by a person no longer employed by a respondent. Lancaster-
Fairfield Community Hospital, 303 NLRB 238 fn. 1 (1991). M.
DeLeon’s testimony that she had a conversation with Kelly is
unrebutted.
Counsel for the General Counsel and the Charging Party
urge that I find that Kelly stated that he was going to lay off the
employees who wanted a 15-minute break the following Friday
and that he “confided” his intentions to M. DeLeon because he
desired to have a closer relationship with her. The record sim-
ply does not support this argument. Nothing was confided.
Kelly was upset with M. DeLeon, the employee who had raised
the issue of a break. He immediately confronted her, cursed the
Union to which he incorrectly attributed the request for a break
which would potentially complicate a definite layoff planned
for the following Friday, and told M. DeLeon, the only person
who spoke at the meeting, to “stay away” from “these people”
or she would “have trouble.”
When restating her recollection of Kelly’s comment regard-
ing a layoff, M. DeLeon omitted any reference to “these peo-
ple” and specifically repeated, “Friday. Layoff. Definite.”
There were approximately 40 employees at the meeting and,
depending upon the witness, between 10 and 25 of them, from
one quarter to over half of them, indicated support for M.
DeLeon’s suggestion. If I were to credit M. DeLeon’s first
version of Kelly’s comments, I would have to assume that
Kelly was somehow able to identify those employees who ex-
pressed support for M. DeLeon, either by nodding, hand rais-
ing, or murmuring. Kelly’s purported identification of “these
people” would have to have included well more that the five
alleged discriminatees who were at the meeting. Kelly had no
authority over employees supervised by Estrada. His comments
were made within 2 or 3 minutes of M. DeLeon’s request. His
affirmative identification of a date, “Friday. Layoff. Definite,”
belies a spontaneous reaction to anything that occurred at the
meeting. Kelly referred to a definite layoff on Friday. Estrada
had informed Mitchell at least a week prior to January 4 that he
needed to terminate carpenters who were unable to perform
work to his satisfaction. Mitchell told him that he would have
to keep them for a while. Mitchell met with his foremen each
morning. Thus, consistent with M. DeLeon’s second version of
his remarks, Kelly cursed the Union, to which he incorrectly
attributed the request for the 15-minute break for potentially
complicating a planned, i.e., “definite,” layoff that had been
scheduled for the following Friday. I do not credit M. DeLeon’s
initial testimony that Kelly referred to “these people” in regard
to the layoff. Kelly did not, in a 2-minute interval, calculate a
scheme to retain M. DeLeon and delay laying off various em-
ployees that he had somehow identified at the meeting. Kelly
spontaneously called M. DeLeon, the only employee who had
said anything at the meeting forward, cursed the Union, in-
formed M. DeLeon that there was a planned layoff the follow-
ing Friday, and told M. DeLeon to “stay away” from “these
people” or she would “have trouble.” I shall recommend that
the allegation relating to a threat of layoff be dismissed.
M. DeLeon’s testimony that Kelly told her she should “stay
away all these people, because if you no stay away these peo-
ple, you have trouble” is uncontradicted. The complaint alleges
that Kelly “threatened employees with unspecified reprisals for
engaging in union and/or concerted, protected activities.” The
generalized reference to “you have trouble” did not indicate in
any way that the Respondent rather than other employees or
union officials would be the source of the unspecified “trou-
ble.” I find the statement “much too vague to support the find-
ing of a threat.” Northern Wire Corp., 291 NLRB 727, 729
(1988). There is no evidence of any reprisal against M.
DeLeon, and her termination is not alleged as a violation. I
shall recommend that this allegation be dismissed.
Regarding the admonition to “stay away . . . [from] these
people,” counsel for the General Counsel argues that “warning
employees to stay away from others who engage in protected
concerted activities” violates the Act. Counsel neglects to point
out that no such violation is alleged in the complaint. No mo-
tion to amend has been made. I shall not find a violation regard-
ing unalleged conduct on the basis of M. DeLeon’s less than
reliable testimony. See Gibson Discount Center, 191 NLRB
622 fn. 3 (1971). In the comment as reported by M. DeLeon,
the reference to “these people” is ambiguous. In context it is
unclear whether it related to the unidentified employees who
had supported her or to unidentified union officials. Although
not alleged as a violation, the comment, with its ambiguity,
does establish animus towards both union and protected con-
certed activity.
The complaint further alleges that, in mid-January, Kelly
again threatened employees with discharge for engaging in
union and/or protected concerted activity. The General Counsel
argues that this allegation is established by M. DeLeon’s testi-
mony that, after the layoff, she asked Kelly why the employees
had been laid off and he replied that he “had gotten rid of that
shit and that there were other people waiting in the yard for
work.” That answer contains no threat. It simply states that the
Respondent “got rid of” employees with no mention of the
union or protected concerted activity. I shall recommend that
this allegation be dismissed.
2. The discharges
The analytical framework of Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), is applicable in dual
or mixed motive cases after the General Counsel has estab-
lished employee union activity, employer knowledge of that
activity, animus towards such activity, and adverse action taken
against those involved in that activity. Once this showing has
been made, the burden shifts to the employer to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct.
Superintendent Kelly’s statement that he believed the request
for a break was “coming from the Union,” although incorrect,
followed by his advice that M. DeLeon “stay away . . . [from]
these people” establishes animus. Alleged discriminatees Busti-

BAKER CONCRETE CONSTRUCTION, INC. 605
llo and Montero had shown their union cards to General Fore-
man Estrada, and all were present at the December 28 meeting.
Wilder DeLeon, although not present at the December 28 meet-
ing, had identified himself as a union member to his supervisor.
All three were terminated. Thus, the General Counsel has estab-
lished a prima facie case that the Respondent discharged those
employees because of their union activity in violation of Sec-
tion 8(a)(3) of the Act.
Although finding that the General Counsel established the
elements necessary to establish a prima facie case, thus avoid-
ing dismissal of that aspect of the allegations, the case estab-
lished is tenuous. There is no evidence that any of the foregoing
employees engaged in any union activity other than Bustillo,
Montero, and Wilder DeLeon identifying themselves as union
members. There is no evidence that Dinarte was a union mem-
ber. Contrary to a statement the brief of counsel for the General
Counsel, there is absolutely no evidence that Dinarte showed a
union card to Estrada. Cabrera never identified himself as a
union member. Estrada, a former union member himself, did
not react in any manner when Bustillo and Montero identified
themselves as union members. Although Wilder DeLeon testi-
fied that Foreman Laibang did react to his showing him his
union card, he did not allege any change in his terms and condi-
tions of his employment following his revelation of union
membership. No conduct that violated Section 8(a)(1) of the
Act or discrimination contemporaneous with the foregoing
disclosures of union affiliation by these three employees is
established by the evidence or alleged in the complaint.
The record also establishes protected concerted activity. Em-
ployee activity is concerted when it is “engaged in with or on
the authority of other employees.” Meyers Industries, 268
NLRB 493, 497 (1984). A respondent violates Section 8(a)(1)
of the Act if, having knowledge of employee concerted activity,
a respondent takes adverse employment action that is “moti-
vated by the employee’s protected concerted activity.” Id. M.
DeLeon requested a break and between one quarter and one
half of the employees present indicated support for the request
by nodding, raising their hands, murmuring, or signing a list.
Logic suggests that no adverse action was predicated upon
visual identification. Had this been so, well more than the al-
leged discriminatees would have been terminated including
employee Ivo Saldivar, whom Dinarte identified as being in the
discussion on December 21 and whom Dinarte asserted raised
his hand at the meeting. Thus, I shall address the purported list
about which five of the General Counsel’s witnesses testified.
If I assume that a list of employees who wanted the 15-
minute break was made, I would, consistent with the testimony
of Montero and Cabrera, have to find that the list contained
between 10 and 12 names. Wilder DeLeon did not sign the list.
Montero signed a list that was not circulated by anyone but
contained 10 names, presumably 11 names after he signed it.
Cabrera and Dinarte testified that they signed the list. Although
I have not credited their testimony that Estrada had a list, I shall
assume that they did sign a list. Bustillo believes his name was
written down. The General Counsel did not establish that Lo-
pez-Garcia, the alleged discriminatee who did not testify, or
Avila and Coffee, the other employees who were terminated,
signed the list. Thus, so far as the record shows, only four of
the eight employees terminated signed the list and thereby iden-
tifed themselves as supporting M. DeLeon’s request. Even if
Lopez-Garcia, Avila, and Coffee did sign, that list would have
included the names of three employees who were not termi-
nated, assuming a list of 10, or five employees who were not
terminated, assuming a list of 12. One of those employees was
M. DeLeon, the only employee who spoke at the meeting, who
signed the list, and who was not terminated.
Counsel for the General Counsel argues that the Respondent
did not terminate M. DeLeon because to have discharged the
only spokesperson “would have been indefensible.” Counsel
also notes that such caution would avoid a potential sexual
harassment claim. M. DeLeon places Kelley’s unwanted ad-
vances as occurring after January 4, thus there is no basis for
the latter argument. The only evidence of any animus is that
expressed by Kelly who did not supervise any of the alleged
discriminates and who was not involved in the decision to ter-
minate them. When Montera spoke to Kelly immediately after
his termination, Kelly told him that “he had no control over
that.” The only reaction to the employees’ concerted activity
established by probative evidence is Kelly’s speaking to M.
DeLeon, the spokesperson. Counsel for the General Counsel
and Charging Party argue that six competent employees, one of
whom was not even at the meeting, were terminated for doing
nothing more than supporting the request of the only employee
who spoke by nodding their heads, raising their hands, or sign-
ing a list which, if it existed, contained at least 10 names. I do
not agree.
The construction at Miami International Airport was compli-
cated, involving slopes and ramps; it was “different than most
buildings.” Montero testified, “A lot of carpenters have differ-
ent ways of working. I have my ways, and it’s like that.”
Mitchell explained that Estrada did not “like doing his work
two or three times. He likes it done right.” I credit Estrada that
he was dissatisfied with the job performance of each of the
alleged discriminatees. After working inside the perimeter, W.
DeLeon was transferred to the yard before identifying himself
as member of the Union. Montero, having been criticized by
Estrada, sought to establish his competence by showing Estrada
his union card. Dinarte acknowledges hearing Estrada specifi-
cally criticize and reassign Cabrera, but asserts this was after
December 28. Cabrera testified that Estrada did not talk to him
after December 28. If that were true, the criticism would have
occurred prior to that date. Although Dinarte, who was not a
union member, testified that his assignment to “pulling jacks”
was contemporaneous with his signing the list requesting the
15-minute break, the foregoing assignment is not alleged to
have been in retaliation for engaging in protected concerted
activity. Even assuming that the “different ways of working” to
which Montero referred were competent, the individual that the
employees had to satisfy was General Foreman Estrada. The
record establishes that, in performing work in “different ways,”
their way rather than Estrada’s way, the alleged discriminatees
did not satisfy him.
Whether viewed as union activity or protected concerted ac-
tivity, the crux of this case is whether the adverse employment
action taken by the Respondent against the six alleged dis-
criminatees was motivated by their protected conduct. On the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
basis of this record, I simply cannot find that there is persuasive
evidence that any protected conduct in which the alleged dis-
criminatees engaged related in any way, much less was a moti-
vating factor, in the terminations that occurred on January 4.
The Respondent’s spontaneous reaction to the protected con-
certed activity was to speak to the employee spokesperson. At
that time, the Respondent had already decided to terminate
employees who could not perform with the skill necessary for
the construction at the Miami International Airport. There is no
probative evidence that the Respondent either identified or
selected the employees that it terminated on the basis of their
union membership or protected concerted activity. Although
finding that the General Counsel established a prima facie case
with regard to the allegations of discrimination because of un-
ion activity and protected concerted activity, I further find that
the Respondent has rebutted that case and established that it
would have terminated the alleged discriminatees in the ab-
sence of any union or protected concerted activity. In view of
the foregoing and the entire record, I shall recommend that the
8(a)(1) and (3) allegations relating to the layoff and/or dis-
charge of the alleged discriminatees be dismissed.
CONCLUSIONS OF LAW
The Respondent has not engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.