Basic Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 2006

348 N.L.R.B. 1267 (N.L.R.B. 2006)

BASIC INDUSTRIES
348 NLRB No. 89
1267
Basic Industries, Inc. and International Association of
Heat and Frost Insulators and Asbestos Work-
ers Local 53. Cases 15–CA–17525, 15–CA–
17701, and 15–CA–17707
December 18, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On May 23, 2006, Administrative Law Judge Keltner
W. Locke issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering 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 briefs and has decided to
adopt the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
1. We adopt the judge’s dismissal of the allegations
that employees Jorge Pinto and Oscar Madrid were
unlawfully laid off and that employee Jorge Chavez was
unlawfully discharged. Under the Wright Line2 test, the
General Counsel must initially establish that the alleged
discriminatee engaged in union activity, that the respon-
dent had knowledge of that activity, and that the respon-
dent harbored antiunion animus.3 Once the General
Counsel has made this initial showing, the burden shifts
to the respondent to show that it would have taken the
action against the employee even in the absence of the
union activity. In this case, we find, in agreement with
the judge, that the General Counsel failed to meet his
burden.
As the judge found, both Pinto and Madrid were union
organizers, and Madrid additionally wore a union sticker
on his hardhat on September 23, 2004. The Union sent a
fax to the Respondent informing it of their status as un-
ion organizers on the same day. Thus, the General
Counsel established the first two Wright Line factors.

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 ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
3 Consistent with his previously stated position, Member Schaumber
believes that since Wright Line is a causation test it requires a showing
of causal nexus between the antiunion animus and the adverse em-
ployment action. See e.g., North Fork Services Joint Venture, 346
NLRB 1025, 1026 fn. 7 (2006).
However, we agree with the judge that the General
Counsel failed to establish animus, as Wright Line also
requires. The complaint does not allege, and the record
does not show, any statements or conduct by the Re-
spondent indicative of animus. Nor do we infer animus
from the timing of the layoffs. Pinto and Madrid were
hired to perform a phase of work called “pre-turnover.”
They were laid off, along with 12 other employees who
also had been hired to perform pre-turnover work, when
that phase was, or was about to be, completed. Thus, the
timing of the layoffs resulted from the completion of the
pre-turnover work.4 In addition, we reject the General
Counsel’s contention that animus should be inferred be-
cause the Respondent’s asserted basis for selecting Pinto
and Madrid was a pretext. Contrary to this assertion, the
judge credited Project Manager Christopher Langlois’
explanation of the reasons why these employees were
selected for layoff.
In adopting the judge’s conclusion that the Respondent
did not unlawfully discharge Chavez, we similarly find,
for the reasons stated by the judge, that the General
Counsel failed to meet his burden of establishing that
animus was a motivating factor.5 In addition, based on
the judge’s discrediting of the relevant testimony of
Chavez and employee Norberto Hernandez, we find no
merit in the General Counsel’s argument that the Re-

4 We find it unnecessary to rely on speculative remarks by the judge in
his decision. For example, we find it unnecessary to rely on the judge’s
conjecture, in declining to infer animus from the timing of the layoffs,
that the Union could have anticipated the layoffs and waited until just
before that time to reveal that Pinto and Madrid were organizers.
Member Schaumber agrees with his colleagues that the General
Counsel has failed to establish that antiunion animus was a motivating
factor in the Respondent’s selection of employees Pinto and Madrid for
layoff. Member Schaumber recognizes, as did the judge, that the Union
in this case had considerable control over when the Respondent learned
that Pinto and Madrid were organizers. For this reason, he finds that it
was appropriate for the judge to consider this fact in determining
whether and the extent to which antiunion animus would be imputed
from the timing of the layoffs which were cyclical and preplanned.
5 To prove animus, the General Counsel contended that the Respon-
dent engaged in an antiunion campaign. Contrary to this contention,
we adopt the judge’s finding that the Respondent did not conduct an
antiunion campaign. In view of the judge’s finding in this regard, we
need not and do not reach the issue of whether such a campaign may
constitute evidence of animus to support an 8(a)(3) discharge allega-
tion.
The General Counsel argued that the Respondent demonstrated anti-
union animus by engaging in an antiunion campaign. While the judge
found as a factual matter that the Respondent did not engage in an anti-
union campaign, Member Schaumber considers the General Counsel’s
argument inconsistent with Sec. 8(c) of the Act and an employer’s right
to support or oppose unionization. Animus toward unionization is not
unlawful. What is unlawful is an employer’s active animus toward the
Sec. 7 activities of its employees to freely choose a collective-
bargaining representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
spondent demonstrated animus by convening employees
for captive audience speeches.
2. We also adopt the judge’s dismissal of the allega-
tions that the Respondent unlawfully refused to reinstate
Hernandez following an unfair labor practice strike and
also discharged him because of his union and protected
concerted activities. As the judge correctly found, the
General Counsel failed to prove any unfair labor practice
that would support the complaint allegation that Hernan-
dez was an unfair labor practice striker. Furthermore, as
more fully explained by the judge, there is no credited
evidence regarding the reason why Hernandez engaged
in the strike. Therefore, the General Counsel has failed
to demonstrate that the strike constituted either union or
other protected concerted activity.6
ORDER
The complaint is dismissed.
Beauford D. Pines, Esq., for the General Counsel.
G. Mark Jodon, Esq. and J. Daniel Rodriguez, Esq. (Littler
Mendelson, P.C.), of Houston, Texas, for the Respondent.
Mauro Carrasco, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. In this
case, the General Counsel alleges that the Respondent discrimi-
nated against four employees in violation of Section 8(a)(3) and
(1) of the Act. Because of my credibility determinations, I
recommend that the Board dismiss the complaint in its entirety.
Procedural History
This case began on October 19, 2004, when the International
Association of Heat and Frost Insulators and Asbestos Workers,
Local 53 (the Union or Charging Party) filed an unfair labor
practice charge in Case 15–CA–17525 against Basic Industries,
Inc. (Respondent). The Union amended this charge five times:
On October 21, 2004, January 27, 2005, March 3, 2005, March
7, 2005, and April 12, 2005.
On April 29, 2005, the Union filed against Respondent the
unfair labor practice charge which began Case 15–CA–17701.
On May 9, 2005, the Union filed another charge, docketed as
Case 15–CA–17707. Respondent admits that all charges were
served on the dates alleged by the General Counsel.
On June 28, 2005, the Regional Director for Region 15 of the
Board issued a Complaint against Respondent in Case 15–CA–
17525. On July 19, 2005, the Regional Director issued an order

6 In view of the General Counsel’s failure to establish the reason for
Hernandez’s action, we find it unnecessary to rely on the judge’s ex-
pressed suspicions that, because the other individuals picketing with
Hernandez were not employees of the Respondent, the strike might not
have been in protest of conduct by the Respondent. We also find it
unnecessary to rely on the judge’s statement that Hernandez’ testimony
that he discussed Chavez’ discharge with fellow union organizer
Maximos Perdomo did not indicate that the conversation occurred in
the course of their employment as union organizers.
consolidating cases, consolidated complaint, and notice of hear-
ing, which, for brevity, I will call the complaint.
On January 30, 2006, a hearing in this matter opened before
me in Baton Rouge, Louisiana. On that day and the two fol-
lowing days, the parties presented evidence. After receipt of
the transcripts of those proceedings, counsel gave oral argu-
ment on February 23, 2006.
Admitted Allegations
Respondent’s answer to the consolidated complaint and no-
tice of hearing (the answer) admitted many of the allegations.
Based upon those admissions, I make the following findings.
The charges and amended charges were filed and served as
alleged in complaint paragraphs 1(a) through 1(h).
At all material times, Respondent has been a corporation with
an office and place of business in Baton Rouge, Louisiana, and
has been engaged in providing insulation services. It’s business
operations have been sufficient to satisfy both the statutory defi-
nition of an employer engaged in commerce and the Board’s
discretionary standards for exercise of its jurisdiction.
At all material times, the following persons have been super-
visors of Respondent within the meaning of Section 2(11) of
the Act and its agents within the meaning of Section 2(13) of
the Act: Personnel Manager Logan Barrow; Safety Coordina-
tor Travis Chaney; Site Manager J. W. Courtney; Project Man-
ager Chris Langlois; Supervisor Greg Langlois; Foreman Chris
Mahon; Foreman Ricky Price; Corporate Safety Officer Jack
Rhodus; Insulator Foreman Jeff Sarow; Foreman and (subse-
quently) Labor Recruiter Juvenile Torres; Insulator Foreman
Brian Tranchina; and General Foreman Larry Usea.
On about September 27, 2004, Respondent laid off employ-
ees Oscar Madrid and Jorge Pinto, as alleged in complaint
paragraph 7.
On about April 26, 2005, Respondent discharged employee
Jorge Chavez, as alleged in complaint paragraph 8.
On May 6, 2005, Respondent discharged employee Norberto
Hernandez. Respondent states that it discharged Hernandez for
absenteeism. Respondent has not reinstated Hernandez to his
former position of employment.
Contested Allegations
The Union’s Status
Complaint paragraph 5 alleges that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act. Re-
spondent’s Answer states that it is without knowledge. This
statement constitutes a denial under Section 102.20 of the
Board’s Rules and Regulations.
Section 2(5) of the Act defines “labor organization” broadly
to include any organization of any kind, or any agency or em-
ployee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or conditions
of work. Although it would surprise me if the Union here
failed to meet that test, I must base my finding upon evidence.
It concerns me that the record says little about the reason Local
53 exists or its purposes.
BASIC INDUSTRIES 1269
However, no one appears to dispute that employees reasona-
bly would consider the Union to be a “labor organization.”
Therefore, discrimination against an employee because of
membership in Local 53, or activities on its behalf, foreseeably
would discourage employees from forming, joining, or assisting
both this Union and others which clearly do fall within the
statutory definition. Thus, the discrimination alleged in the
present complaint, if proven, certainly would implicate Section
8(a)(1) and (3). Although I recommend below that the Board
dismiss the complaint, that recommendation does not turn on
the Union’s Section 2(5) status.
The Layoff Allegations
Respondent’s Answer admits that on about September 27,
2004, it laid off employees Oscar Madrid and Jorge Pinto. It
denies that these layoffs violated the Act.
Whether the layoffs were lawful depends on Respondent’s
motivation. I will discuss that issue below.
The Discharge Allegations
Respondent’s answer admits that on about April 28, 2005, it
terminated the employment of Jorge Chavez, as alleged in
complaint paragraph 8. However, Respondent denies that it did
so because these employees assisted the Union and engaged in
concerted activities, or to discourage employees from engaging
in these activities, as alleged in complaint paragraph 14.
Complaint paragraph 13 alleges that Respondent discharged
employee Norberto Hernandez on about May 9, 2005. Respon-
dent’s Answer states: “The allegation contained in paragraph
13 of the Complaint is denied, because Basic terminated Nor-
berto on May 6, 2005 for absenteeism.”
Thus, although Respondent denies it discharged Hernandez
on May 9, 2005, it admits it did so 3 days earlier. However,
Respondent denies that this action violated the Act. The law-
fulness of Hernandez’ discharge therefore depends on Respon-
dent’s motivation, which I will discuss below.
The Failure to Reinstate Allegation
In addition to alleging that Respondent discharged Norberto
Hernandez because of his union activities and to discourage
other employees from engaging in such activities, the complaint
separately alleges another type of discrimination against him.
It alleges that he became an unfair labor practice striker on
about May 2, 2005, and made an unconditional offer to return
to work on May 9, 2005. It further alleges that Respondent
failed to reinstate him.
This failure–to–reinstate allegation thus arises under a theory
different from an employer’s general obligation to reinstate any
employee it discharged in violation of the Act. To prevail un-
der this separate theory, the General Counsel first must prove
that Hernandez did engage in an unfair labor practice strike.
Should it succeed in establishing Hernandez’ status as an unfair
labor practice striker, the government then must prove that
Respondent failed to reinstate him for an unlawful reason.
Respondent disputes Hernandez’ alleged status as an unfair
labor practice striker and thus denies that it had any obligation
to reinstate him. These issues, as well as the question of Re-
spondent’s motivation, will be discussed below.
Credibility
Two factors cause me to doubt the reliability of the testi-
mony given by Jorge Chavez. On cross-examination, Chavez
gave testimony inconsistent with his pretrial affidavit concern-
ing with whom he had worked at a particular time.
Additionally, Chavez gave nonresponsive answers to a con-
siderable number of questions. Had such nonresponsiveness
been an isolated occurrence, it would reflect less on his credi-
bility, but it happened too often to disregard as insignificant.
For these reasons, I do not credit Chavez’ testimony.
On cross-examination, Oscar Madrid also gave nonrespon-
sive answers to certain questions. I do not credit his testimony
to the extent it conflicts with other evidence.
Two other witnesses provided seemingly evasive responses
to questions posed during cross-examination. In the case of
Noberto Hernandez, these questions concerned why he had put
an incorrect time on a signin/signout sheet. His responses
cause me to doubt the reliability of his testimony.
Additionally, Hernandez often hesitated before answering
questions. These pauses take on added significance when con-
sidered together with Hernandez’ seemingly evasive answers to
some questions. They raise doubts about how faithfully he
adhered to the truth without regard to the consequences of his
testimony. Therefore, I do not credit that testimony.
Additionally, I do not credit the testimony of Jorge Pinto. In
part, my doubts about his testimony arise from the apparently
defensive way he responded to some questions, notably those
concerning the way he had completed his employment applica-
tion. (Pinto claimed that he had received an asbestos certificate
from the State of Louisiana, but he did not mention it on his
employment application, even though it sought information
about “any skills, licenses, or certificates that may be job–
related.”)
Other portions of Pinto’s testimony raise greater concerns.
Pinto testified that Christopher Langlois gave him permission
to take off work for a week after Pinto told Langlois “that I was
going to visit some parents. . . .” Pinto and Madrid then trav-
eled to Las Vegas. While cross-examining Pinto, Respondent’s
counsel sought more information about this trip:
Q. Did you go to any boxing matches or fights while
you were out there?
A. That’s personal, sir. I can’t tell you. It was fami-
lies.
Q. Was it union business you went out there on?
A. It was a personal issue.
Q. Personal business? Is that what you’re telling me?
A. Yes.
After further cross-examination, Pinto admitted that he and
Madrid had attended a union organizing meeting in Las Vegas.
Although Pinto had told Langlois that he was going to visit
“some parents,” Pinto testified that he visited a sister.
Pinto’s lack of candor with his supervisor does affect my as-
sessment of his credibility, but not nearly so much as his puz-
zling evasiveness at hearing. Obviously, Pinto might have been
reluctant to tell his supervisor about his union activity while he
was still working for Respondent. However, that doesn’t ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1270
plain Pinto’s reluctance to admit, on cross-examination a year
and a half later, his participation in a union meeting.
Pinto’s evasiveness about attending the union meeting is dif-
ficult to reconcile with his interest in the outcome of this pro-
ceeding. The complaint alleged that Pinto had been laid off
because of his union activity, and Pinto therefore stood to gain
reinstatement and backpay if such discrimination could be
proven. At the unfair labor practice hearing, Pinto reasonably
would be more likely to flout than conceal his attending a train-
ing meeting for union organizers. Nonetheless, and inexplica-
bly, Pinto disclosed the true purpose of his trip only after exten-
sive cross-examination and my specific instruction to answer a
question.
Pinto’s credibility suffers not only because he tried to evade
answering a question, but also because of the way he tried to
evade it. Pinto initially testified that he had been on “personal
business” involving a “personal issue,” but, in fact, the Union
had paid for the trip so that Pinto could attend to union busi-
ness. Pinto’s willingness to substitute a false reason for the real
one calls into question his commitment to telling the whole
truth and nothing but the truth.
Moreover, Pinto’s testimony during the hearing also con-
flicted in some respects with his pretrial affidavit. For exam-
ple, Pinto had stated in an affidavit that there had been no
morning meeting on September 24, 2004. However, Pinto
testified on cross-examination that there had been a safety
meeting on that date. For all these reasons, I do not credit his
testimony.
The Two Groups of Allegations
The 8(a)(3) and (1) allegations may be divided into two
groups, which will be discussed below under separate headings.
First, the complaint alleges that on about September 27,
2004, Respondent laid off employees Oscar Madrid and Jorge
Pinto. The complaint alleges that these layoffs violated Section
8(a)(3) of the Act.
The second set of 8(a)(3) allegations concern events in late
April and early May 2005. The complaint alleges that on about
April 28, 2005, Respondent unlawfully discharged employee
Jorge Chavez, that another employee, Norberto Hernandez,
engaged in an unfair labor practice strike to protest this dis-
charge, that Respondent refused to reinstate Hernandez after he
made an unconditional offer to return to work, and that Re-
spondent discharged Hernandez for unlawful reasons.
The complaint also alleges that the layoffs of Madrid and
Pinto, the discharges of Chavez and Hernandez, and the refusal
to reinstate Hernandez violated Section 8(a)(1) of the Act.
However, the complaint does not allege that Respondent en-
gaged in any other conduct which violated Section 8(a)(1).
Layoff of Madrid and Pinto
Respondent admits that on about September 27, 2004, it laid
off employees Madrid and Pinto, as alleged in complaint para-
graph 7. However, it denies doing so for an unlawful reason.
In evaluating the lawfulness of these layoffs, I will follow
the framework articulated by the Board in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Under Wright Line, the General
Counsel must establish four elements by a preponderance of the
evidence. First, the government must show the existence of
activity protected by the Act. Second, the government must
prove that Respondent was aware that the employees had en-
gaged in such activity. Third, the General Counsel must show
that the alleged discriminatees suffered an adverse employment
action. Fourth, the government must establish a link, or nexus,
between the employees’ protected activity and the adverse em-
ployment action.
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent bears the burden of show-
ing that the same action would have taken place even in the
absence of the protected conduct. Wright Line, supra at 1089.
See also Manno Electric, Inc., 321 NLRB 278, 280 at fn. 12
(1996).
Both Pinto and Madrid testified that they worked for the Un-
ion as organizers. No other evidence contradicted them on this
point. Even though I have considerable doubt about much of
their testimony, the circumstances of this case lead me to con-
clude that they were, as they said, employed by the Union.
Additionally, it seems plausible to conclude that Oscar Ma-
drid did put a union sticker on his hard hat on about September
23, 2004. Accordingly, I conclude that the General Counsel
has established that Pinto and Madrid engaged in activities
protected by the Act. Therefore, I further conclude that the
government has proven the first Wright Line element.
Next, the General Counsel must prove that Respondent was
aware of the protected activities. On September 23, 2004, the
Union sent to Respondent, by facsimile, a letter identifying
Pinto and Madrid as “volunteer organizers for Local #53.” I
conclude that, as of September 23, 2004, Respondent knew
about the union activities of Pinto and Madrid. Therefore, I
also conclude that the General Counsel has established the sec-
ond Wright Line element.
Respondent has admitted that it laid off Pinto and Madrid on
September 27, 2004. Accordingly, I conclude that the govern-
ment has established that there was an adverse employment
action, thereby satisfying the third Wright Line requirement.
The final Wright Line element concerns proof of unlawful
motivation. More specifically, the General Counsel must dem-
onstrate some connection between the protected activities and
the adverse employment action. The government could satisfy
the final Wright Line requirement with credible evidence that
Respondent harbored hostility towards the Union.
Such evidence of antiunion animus varies from case to case,
but typically may include statements by management which
constitute threats or otherwise violate Section 8(a)(1) of the
Act. In the present case, however, the complaint does not al-
lege any such independent violations of Section 8(a)(1).
Statements imputable to management also may establish
animus even if such statements do not themselves violate the
Act. However, the General Counsel has not argued that any
specific supervisor or agent made any particular statement
evincing such hostility to the Union. In any event, no credible
evidence establishes that any of Respondent’s supervisors or
agents made such a statement.
BASIC INDUSTRIES 1271
The General Counsel argues that animus may be inferred
from the timing of the layoffs. Without doubt, the Board may,
in appropriate cases, infer animus from the timing of events.
Sears, Roebuck & Co., 337 NLRB 443 (2002); Masland Indus-
tries, 311 NLRB 184, 197 (1993).
An inference of animus based on the timing of events implic-
itly assumes that the employer controls the timing of a particu-
lar adverse employment action. Only actions within an em-
ployer’s control can reflect the employer’s motivation. When
an employer does have exclusive control over the interval be-
tween its discovery of protected activities and the layoff or
discharge of an employee, a short interval may say something
about the reason for the layoff or discharge.
The present case, however, is somewhat unusual. Here, the
Union was engaged in a strategy known as “salting,” in which
organizers applied for jobs without revealing their union affilia-
tion. The Union therefore had considerable control over when
the Respondent became aware that Pinto and Madrid were or-
ganizers. The Union revealed their affiliation by sending a
letter to Respondent by fax. The Union alone had control over
when it would fax this letter and, therefore, when Respondent
would become aware of the employees’ activities.
The Union did not have similar control over the dates of the
layoffs, but it reasonably would know in advance when those
layoffs would occur, at least approximately. The record estab-
lishes that Respondent’s work followed a consistent pattern of
three phases called preturnover, turnover, and postturnover.
Layoffs typically occur at the end of the preturnover phase
because some of the work during the turnover period requires
different skills.
Respondent estimates well in advance the date when the pre–
turnover phase will end and the turnover phase begin. Indeed,
Respondent’s site manager, Christopher Langlois, credibly
testified that on September 15, 2004, 95 percent of the pre–
turnover work had been completed. At that point Langlois
could determine when the remaining work would be completed
and, therefore, when the layoff would begin.
This knowledge was hardly a secret. Indeed, an experienced
employee reasonably would know how much of his preturnover
work remained to be done. Union organizers Pinto and Madrid
were working at the jobsite as the preturnover phase neared
completion. Through them, the Union acquired enough infor-
mation to make its own estimate of when the turnover would
occur.
Accordingly, the Union had some ability to determine the
approximate interval between when Respondent became aware
of the organizers’ union activities, and when the layoff would
occur. It could make this interval short by waiting until just
before the expected layoff to reveal its presence.
Before drawing any inference from the timing of events, a
judge should have confidence that the employer, and the em-
ployer alone, controlled the timing. A union’s power to affect
timing erodes confidence even if the union doesn’t use its power.
The mere fact that the Union could affect the interval if it wished
to do so casts doubt on the significance of the interval.
Because the record does not provide a basis to sort out how
much of the interval should be attributed to the Respondent’s
decision and how much to the Union’s decision, drawing any
inference from the timing would involve guesswork. Such an
inference would be inappropriate in this case.
The General Counsel also argues that the layoff was pretex-
tual and that animus may be inferred from such a pretext. In
considering this argument, I must follow carefully the Wright
Line framework exactly as the Board has promulgated it. How-
ever, it concerns me that the General Counsel’s argument could
truncate the Wright Line analysis and prematurely shift the
burden of going forward to the Respondent.
During oral argument, the General Counsel sought to show
that Site Manager Christopher Langlois had not given the real
reasons for laying off Pinto and Madrid while retaining other
workers. In part, the General Counsel stated as follows:
Further, Langlois testified that he kept other employ-
ees with the same grade as Pinto and Madrid, because
those employees were certified to perform lead abatement,
including employees Thurman Ellis, Thomas Hickman,
Paris Scott, and James Sparks.
Respondent, however, did not present a single docu-
ment or certificate into evidence to show that Ellis, Hick-
man, Scott or Sparks were, indeed, certified lead abaters.
Further, Respondent did not have Ellis, Hickman, Scott or
Sparks appear at the hearing to testify regarding their certi-
fication in lead abatement. Therefore, the only inference
that can be drawn is that Respondent used the alleged cer-
tifications as a pretextual basis to discriminatorily lay off
Madrid and Pinto.
Under the Wright Line framework, an employer must come
forward with evidence to justify an adverse action after the
General Counsel has satisfied the initial four Wright Line re-
quirements, thereby creating a presumption of unlawful motiva-
tion. However, at this point in the analysis, the General Coun-
sel has established only the first three Wright Line elements.
Thus, no presumption of unlawful motivation has arisen.
It certainly is true that once the government has proven the
four Wright Line elements, a respondent then bears the burden
of showing that it would have taken the same action even ab-
sent protected activities. It also is true that to make such a
showing requires considerable and sometimes copious evi-
dence. See, e.g., Lampi LLC, 327 NLRB 222 (1998). The sort
of detailed evidence described in the General Counsel’s oral
argument might well be needed to rebut a presumption of
unlawful motivation.
However, as noted above, the General Counsel has yet to
prove the fourth Wright Line element and no presumption of
unlawful motivation has arisen. Respondent need not present
evidence to prove its motivation innocent until the government,
by satisfying the Wright Line test, has created a presumption
that the Respondent’s motivation was not innocent.
The burden of coming forward with sufficient evidence to
meet the Wright Line requirements remains on the General
Counsel. The government subpoenaed a number of records and
certainly could have subpoenaed the documents which, the
General Counsel argues, Respondent should have introduced.
If these documents had contradicted the explanation given by
Respondent’s managers, then the General Counsel could have
offered them into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
The government is not arguing that an adverse inference
should be drawn because Respondent failed to produce subpoe-
naed records. Indeed, the evidence does not establish that the
General Counsel even subpoenaed the documents it now argues
that Respondent should have introduced. Rather, the govern-
ment seeks an adverse inference based on Respondent’s failure
to do something it had no obligation to do.
In sum, the General Counsel has not shown that Respondent
had any duty to present these records, either in response to a
subpoena or because the burden of proceeding had shifted.
Accordingly, no adverse inference is appropriate.
The General Counsel further argues that “Respondent did not
have Ellis, Hickman, Scott or Sparks appear at the hearing to
testify regarding their certification in lead abatement.” How-
ever, the government, not the Respondent, bore the burden of
establishing the fourth Wright Line element and the General
Counsel certainly could have subpoenaed these individuals.
Moreover, based upon my observations of the witnesses, I
credit Christopher Langlois’ testimony. I find that he testified
accurately about the reasons Respondent laid off Pinto and
Madrid rather than other workers.
In other respects, the record fails to establish that antiunion
animus entered into Respondent’s selection of Pinto and Ma-
drid for layoff. Accordingly, I conclude that the General Coun-
sel has failed to satisfy the fourth Wright Line requirement.
Therefore, I recommend that these allegations be dismissed.
Discharge of Chavez
Respondent has admitted that on about April 28, 2005, it dis-
charged employee Jorge Chavez, as alleged in complaint para-
graph 8. However, Respondent denies that it did so for unlaw-
ful reasons. Again, Wright Line provides the framework for
analyzing this issue.
Chavez’ relationship with Respondent began about Decem-
ber 28, 2004, when he applied for employment. That day or the
next, Chavez began working for Respondent.
When he applied for work, Chavez was a union organizer but
did not disclose his union affiliation. Based on Chavez’ rela-
tionship with the Union, I conclude that the evidence has satis-
fied the first Wright Line requirement.
On February 8, 2005, the Union sent Respondent a letter iden-
tifying Chavez as its organizer. As of that date, Respondent had
knowledge of Chavez’ Union affiliation and activities. Thus, the
government has proven the second Wright Line element.
Respondent’s admission that it discharged Chavez on about
April 28, 2005 establishes the third Wright Line element. Dis-
charge certainly is an adverse employment action.
To meet its initial burden, the government also must demon-
strate a connection between Chavez’ protected activities and his
discharge. As already noted, the complaint does not allege that
Respondent’s supervisors or agents made any threat or other
statement which violated Section 8(a)(1) of the Act. Addition-
ally, the credited evidence does not reveal any other statement,
even one not alleged as violative, which would suggest an
unlawful motive.
During oral argument, the General Counsel asserted that Re-
spondent engaged in a number of acts which indicate antiunion
animus. However, the credited evidence does not support the
government’s contentions.
The General Counsel asserted that between March 1 and 23,
2005, Respondent allowed the following remark to remain visible
in a work area: “If you vote union, you must be a wetback.”
This argument assumes that management knew about the anti-
union comment but did not nothing to erase the words from the
wall. The argument also posits that by knowingly allowing the
words to remain, Respondent condoned or adopted them.
The record does not establish that the comment appeared in
large, clearly legible letters that would be difficult to overlook.
The writing was graffiti. Absent credible evidence that a su-
pervisor or manager actually took notice of the writing on
March 1, there is little reason to conclude that Respondent
knowingly tolerated the antiunion message for 22 days, as the
General Counsel supposes.
In other ways, the credited evidence does not support the
General Counsel’s argument. Indeed, even Chavez’ testimony,
which I do not consider reliable, indicates that once Respondent
knew about the graffiti, it took prompt steps to remove it:
Q. When you brought it to the company’s attention at
the safety meeting, the wall was painted over later that
day. Correct?
A. Yes, sir.
The government also argues that Respondent “paired the two
[Hernandez and Chavez] together and gave them work assign-
ments away from other insulation employees. . .” The credited
evidence does not support this claim. Indeed, even Chavez
admitted during cross-examination that after February 8, 2005
(when his union affiliation became known) Respondent still
sometimes assigned him to work with employees other than
Hernandez. Hernandez’ testimony, even if credited, also would
not establish that Respondent, after learning of their Union
activities, isolated Chavez and him from other workers.
For example, Hernandez claimed that one job assignment
was so isolated it was a 20-minute walk from that location to
the shop to have lunch. However, that assignment only lasted 2
weeks.
Even were I to credit the testimony of Chavez and Hernan-
dez about the location of their job assignments, no evidence
establishes that management made such assignments to isolate
the two from other employees, rather than because the work
required employees with their skills to be in these particular
locations. Because I find that Respondent did not isolate
Chavez from other workers, I reject the General Counsel’s
argument.
Although the General Counsel further argues that the “cor-
roborated testimony of Hernandez and Chavez establishes that
Respondent sponsored an anti–union campaign,” the govern-
ment does not point to any specific evidence of such an anti-
union campaign. Certainly, the General Counsel did not offer
evidence that management distributed any antiunion literature,
held captive audience speeches, posted signs, or otherwise did
any of the things which typify an “antiunion campaign.”
Moreover, as already discussed, I do not believe either Her-
nandez or Chavez gave reliable testimony. Therefore, I reject
the General Counsel’s argument.
BASIC INDUSTRIES 1273
The General Counsel also contends that Respondent imposed
less severe discipline on certain other employees than it did on
Chavez, and that animus may be inferred from this disparity.
However, these other employees did not receive discipline for
the same infractions and, I conclude, their situations are not
comparable.
When an employer treats similarly situated workers in dif-
ferent ways, it is reasonable to conclude that a disparity exists
which may be revealing. That, in effect, is “comparing apples
with apples.” However, when the two workers really are not
similarly situated, examination of the disparity entails a com-
parison of “apples with oranges” and no meaningful inference
may be drawn.
In sum, the absence of direct evidence of unlawful motiva-
tion makes it necessary for the government to argue that animus
may be inferred from various circumstances. However, for the
reasons discussed above, I conclude that no such inferences are
warranted.
The General Counsel also raised some matters which bear no
obvious relevance either to Respondent’s motivation or to other
issues presented by the Complaint. For example, during oral
argument, the General Counsel stated:
[T[he corroborative testimony of Norberto Hernandez and
Jorge Chavez established that on March 30, 2005, foreman
Brian Tranchina was present when employee Blaine Albarado
made the discriminatory and derogatory remark to Hernandez
and Chavez that Mexicans ride in the back of a truck. Again,
the evidence reflects that Respondent took no action to en-
force its policies and deter such discrimination until April 21,
2005, nearly a month later when Hernandez and Chavez de-
manded that Respondent do something.
The General Counsel appears to be arguing that the mere
presence of a supervisor on this occasion makes it possible to
attribute whatever the supervisor heard to the Respondent.
Stated another way, the government is arguing that whatever
the employee said must reflect management’s attitude because
a supervisor heard it but then did nothing.
However, even assuming that the employee made the quoted
remark, and even assuming further that the supervisor heard it
and said nothing to disavow the comment, it hardly would be
reasonable to infer much from the supervisor’s silence. Cer-
tainly, it would be a stretch to conclude that the supervisor’s
inaction signified that his boss, or his boss’s boss, was a bigot.
For the sake of analysis, however, let us assume that such an
inference appropriately could be drawn. Doing so would lead
only to the conclusion that some members of management suf-
fered from a prejudice which might cause them to discriminate
on the basis of ethnicity or national origin. Even this conclu-
sion, which I consider unwarranted, doesn’t move the govern-
ment any closer to establishing the motivation at issue here,
antiunion animus.
Rule 401 of the Federal Rules of Evidence defines “relevant
evidence” to mean “evidence having any tendency to make the
existence of any fact that is of consequence to the action more
probable or less probable than it would be without the evi-
dence.” Even assuming that the General Counsel had shown
that members of Respondent’s management might discriminate
on the basis of national origin, proving such a prejudice would
neither make more likely nor less likely any matter raised by
the complaint.
To summarize, it would be unreasonable to attribute an em-
ployee’s remark to management simply because a supervisor
heard it. Moreover, the remark in question, even if established,
did not pertain to any disputed issue in this case. It did not
constitute relevant evidence under Rule 401.
Because the testimony about the “Mexicans ride in the back”
remark is irrelevant, I need not add that I do not believe Her-
nandez and Chavez to be reliable witnesses.
In oral argument, the General Counsel also pointed to an-
other claimed incident in the workplace which, I conclude, fails
to meet the relevancy standard established by Rule 401. Based
on this reputed incident, the government argues that Hernandez
was a “victim of sexual harassment.”
From the evidence, it is far from clear that the incident in
question, involving a coworker of the same gender as Hernan-
dez, amounted to “sexual harassment” in the legal sense. When
one man grabs another man’s buttocks, it cannot be presumed
that the contact signifies sexual harassment rather than common
horseplay which occasionally occurs in the workplace.
However, for the sake of analysis let us assume that the inci-
dent amounted to “sexual harassment.” The General Counsel
has not explained how such “sexual harassment” makes any
more likely, or less likely, the existence of antiunion animus.
The credited evidence does not establish that Respondent en-
forced its policies any differently when the horseplay (or “har-
assment”) involved Hernandez or Chavez rather than some
other employee. I conclude that neither the incident itself nor
management’s response to it sheds any light on the issue of
antiunion motivation.
Additionally, the General Counsel asserts that Respondent
“divided employees according to race.” No credited evidence
supports such a claim and I find it to be untrue. However, even if
some believable evidence had made this claim more respectable,
it would not have made the assertion more relevant. Proof of
racial discrimination does not itself establish antiunion animus.
In sum, credible evidence does not support either the General
Counsel’s relevant or irrelevant arguments. I conclude that the
government has not proven the fourth Wright Line element.
Therefore, I recommend that the Board dismiss the allegation
that Respondent’s discharge of Chavez violated the Act.
Norberto Hernandez
Complaint paragraphs 9 and 10 allege that employee Nor-
berto Hernandez engaged in an unfair labor practice strike from
about May 2 to about May 9, 2005. Complaint paragraph 11
alleges that on about May 9, 2005, Hernandez made an uncon-
ditional offer to return to work. Respondent denies all of these
allegations.
Complaint paragraph 12 alleges that since about May 9,
2005, Respondent has refused to reinstate Hernandez. Respon-
dent’s Answer admits this allegation, and further asserts that
Respondent had no obligation to reinstate Hernandez.
Complaint paragraph 13 alleges that on about May 9, 2005,
Respondent discharged Hernandez. Respondent admits that it
discharged Hernandez three days earlier, on May 6, 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1274
Complaint paragraph 14, which Respondent denies, alleges that
it discharged Hernandez because of his union activities and
other protected activities.
On January 5, 2005, Hernandez went to Respondent’s office
to apply for work as a “mechanic insulator.” At that time, Her-
nandez was a union organizer, but he did not disclose his union
affiliation. Respondent hired him and he went to work at a
jobsite on January 10, 2005.
On February 16, 2005, the Union sent Respondent by fax a
letter identifying Hernandez as one of its organizers. Accord-
ing to Hernandez, on that same day he wore a union shirt to
work and talked to employees about the Union during the lunch
break. (Hernandez’ testimony suggests that other people could
not tell that he was wearing a union shirt until he took off his
overalls at lunch.)
Hernandez testified that after lunch, Respondent assigned
him to work with a different crew. Thereafter, according to
Hernandez, management assigned Chavez and him to work at a
location isolated from other employees.
The complaint does not allege that Respondent unlawfully
isolated either Hernandez or Chavez, but the General Counsel
points to their work assignments as proof of antiunion animus.
For the reasons discussed above, I have concluded that Re-
spondent did not assign Hernandez and Chavez work at remote
locations to prevent them from interacting with other employ-
ees. Therefore, I reject the General Counsel’s argument that
the work assignments suggest animus.
Hernandez testified that on May 2, 2005, he told General
Foreman Larry Usea that he was “going on a strike for unfair
labor practice.” According to Usea, Hernandez did not say he
was going on an “unfair labor practice strike” but only said that
he was going on strike. For the reasons discussed above, I do
not believe that Hernandez was a reliable witness. Crediting
Usea, I find that Hernandez only told Usea that he was going
“on strike,” and did not say that he was going on an “unfair
labor practice strike.”
After informing Usea that he was going “on strike,” Hernan-
dez left the jobsite. The next day, he picketed the jobsite for
about an hour and a half. There were a number of other pick-
ets, none of whom worked for Respondent.
The complaint alleges that Hernandez was an unfair labor
practice striker and that he made an unconditional offer to re-
turn to work on May 9, 2005. Unlike economic strikers, an
unfair labor practice striker is entitled to immediate reinstate-
ment upon the striker’s unconditional offer to return to work.
The Wilkie Co., 337 NLRB 806 (2002). Therefore, Respon-
dent’s admitted failure to reinstate Hernandez would be an
unfair labor practice if the evidence establishes that Hernandez
was, in fact, an unfair labor practice striker.
Before the government can prove Hernandez to be an unfair
labor practice striker, it must first establish that there has been
an unfair labor practice strike. Before the government can
prove there was an unfair labor practice strike, it must show
that there were, in fact, some unfair labor practice. Because the
General Counsel has not proven any unfair labor practices, I
must conclude that there was no unfair labor practice strike and,
accordingly, that Hernandez was not an unfair labor practice
striker.
Moreover, establishing that an employer committed unfair
labor practices only constitutes one element needed to prove an
unfair labor practice strike. The government also must estab-
lish that there was a strike, and that the unfair labor practices
wholly or partially caused or prolonged the strike. Precision
Concrete, 337 NLRB 211 (2001); Citizens National Bank of
Willmar, 245 NLRB 389, 391 (1979), enfd. mem. 644 F.2d 39
(D.C. Cir. 1981). Even were we to assume for analysis that the
picketing constituted some kind of “strike,” credible evidence
fails to establish that any unfair labor practices caused or pro-
longed it.
Demonstrating a causal connection between a strike and an
unfair labor practice requires more than proving that one fol-
lowed the other. As the Board stated in Chromalloy American
Corp., 286 NLRB 868 (1987), “the Board has long recognized
that unfair labor practices may precede a strike without being a
cause of the strike. A causal connection between the unfair
labor practices and the strike must be demonstrated in order to
establish that employees are unfair labor practice strikers.” 286
NLRB at 873 (footnote omitted).
For the reasons discussed above, I do not credit Hernandez’
claim that he announced he was going on an unfair labor prac-
tice strike. Rather, I have found that he only said that he was
going “on strike.” However, crediting his testimony on this
point would make little difference. The words “I’m going on
an unfair labor practice strike” do not, without more, establish
the necessary cause and effect relationship.
Photographs establish that the pickets carried signs with the
legend “unfair labor practice strike.” If other evidence pro-
vided insight into what motivated the picketing, then the legend
on the signs might have probative value. However, the circum-
stances do not warrant taking the signs at face value.
Only one employee of Respondent—Hernandez—walked the
picket line. Yet one of the photographs shows 21 people.
Whoever the other 20 people might be, they did not work for
Respondent.
One would presume that Respondent’s employees would
have the strongest interest in protesting any unfair labor prac-
tices. So it seems somewhat unusual that 20 people who did
not work for this employer—and therefore were not directly
affected by the claimed unfair labor practices—should picket
the jobsite when only one person who had firsthand experience
of the working conditions took the time to show up.
Such curious circumstances justify more than average curios-
ity. If someone whispered me into an alley and offered to sell
me a brand name Swiss watch for 5 dollars, it would cross my
mind that maybe the label didn’t match the product. Here, it is
appropriate to wonder if the label on the signs disclosed the
purpose of the pickets.
Two of the pickets—Hernandez and Union Organizer Maxi-
mos Perdomo—testified during the hearing. Neither one ex-
plained how the pickets came to be at the jobsite. That itself is
unusual.
Typically, in a case involving an alleged unfair labor practice
strike, strikers provide considerable testimony linking the em-
ployer’s conduct with the decision to strike or to remain on
strike. Sometimes, this testimony becomes rather vivid as wit-
nesses describe emotional union meetings at which employees
BASIC INDUSTRIES 1275
expressed strong feelings about the way their employer had
treated them. But even when the testimony isn’t particularly
dramatic, the government develops the link between cause and
effect as plainly as the facts allow.
Here, that link is missing. No evidence reveals the motiva-
tion of the 20 pickets who had never worked for Respondent
and thus had no direct knowledge of how Respondent treated
its employees. The record also does not indicate what the pick-
ets had been told by someone else. Absent evidence about
what prompted the picketing, I must conclude that there was no
unfair labor practice strike.
Because Hernandez was not an unfair labor practice striker,
Respondent had no duty to reinstate him when he offered to
return to work. Therefore, I must reject the General Counsel’s
argument that such a refusal to reinstate violated the Act.
However, the complaint also alleges other unlawful dis-
crimination against Hernandez. Those allegations—that Re-
spondent discharged Hernandez unlawfully because of his Un-
ion and protected concerted activities—will now be considered.
At the outset, I conclude that Hernandez’ picketing does
constitute “concerted activity” because the other pickets, or at
least some of them, enjoyed the status of “employee” under the
Act. Specifically, Section 2(3) of the Act states, in part, that
the “term ‘employee’ shall include any employee, and shall not
be limited to the employees of a particular employer. . .” 29
U.S.C. Section 152(3). That definition is broad and very likely
covers at least some of the pickets. See NLRB v. Town &
Country Electric, Inc., 516 U.S. 85 (1995).
To prevail, however, the General Counsel must do more than
prove that Hernandez engaged in concerted activity with other
employees. The government also must establish that such ac-
tivity enjoyed the protection of the Act. In other words, the
activity must fall within the ambit of Section 7 of the Act,
which gives employees the right to:
self–organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all
such activities. . . . 29 U.S.C. Sec. 157.
The General Counsel bears the burden of proving that Her-
nandez engaged in some activity within the meaning of these
words. In analyzing this issue we may, for convenience, sepa-
rate the activities protected by Section 7 into two categories:
(1) union activity, and (2) other concerted activity “for the pur-
pose of collective bargaining or other mutual aid or protection.”
First, let us examine whether the government has proven that
this picketing constituted union activity.
Credited evidence does not prove that the pickets had any
connection with a labor organization, which, as discussed
above, is “any organization of any kind, or any agency or em-
ployee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or conditions
of work.” 29 U.S.C. § 152(5).
Notwithstanding my concern that the record says little about
the Charging Party’s purposes and activities, I will assume here
that it meets the statutory definition of “labor organization.”
However, the evidence does not establish what role, if any, the
Charging Party played in the picketing of Respondent.
Two of the men who participated in the picketing—
Hernandez and Perdomo—testified at the hearing. The Union
employed both of them as organizers, so they had some famili-
arity with the Union’s operations. However, neither Hernandez
nor Perdomo said anything on the witness stand which would
link the Union to the pickets.
Perdomo did not testify that he participated in the picketing
because the Union instructed him to do so. Likewise, he did
not state that any union official encouraged him to picket. In-
deed, Perdomo’s testimony makes no reference at all to the
May 2005 picketing. That testimony does not support a con-
clusion that the Charging Party sponsored, endorsed or encour-
aged the picketing in any way.
Although Hernandez, like Perdomo, was a union organizer,
his testimony also fails to establish that the May 2005 picketing
was a union activity. Hernandez did testify that he discussed
Chavez’ discharge with Perdomo, but nothing in this testimony
indicates that they had this conversation in the course of their
employment as union organizers. If anything, Hernandez de-
picted the “strike” as his own action, rather than that of any
group.
Q. And what was discussed? What did you discuss
with Mr. Perdomo?
A. That we want to go—I was going to go on strike
for ULP.
For whatever reason, Hernandez corrected his initial use of
the word “we” by substituting “I.” Hernandez did not state that
the Union was calling or engaging in a strike which he intended
to join.
Moreover, Hernandez’ initial use of the word “we” does not
establish Union involvement. Nothing in the record indicates
that Hernandez intended the word to refer to the Union, rather
than to the men who carried the picket signs. The record does
not establish that the Union caused these picketers to be at the
jobsite or supported their activity.
Of course, experience teaches that when pickets show up at a
jobsite, one certainly would expect them to have some relation-
ship to a union. In the present case, however, expectations are
not always a reliable guide.
For example, Hernandez stood to gain by characterizing the
picketing as a union activity and therefore protected by the Act.
A showing that Hernandez had engaged in protected activity
only a few days before his discharge would bolster a conclusion
that the protected activity had influenced the discharge deci-
sion. Testimony that the pickets were acting on behalf of the
Union foreseeably would help establish that, when he joined
the picketing, Hernandez was engaging in protected union ac-
tivity. Thus, such testimony would make more likely a Board
order requiring Respondent to reinstate Hernandez with back-
pay.
Moreover, my assessment of Hernandez’ credibility leads me
to believe that he would rather give testimony advancing his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
self interest than testimony having the opposite effect. Stated
another way, it seems more likely that he would keep silent on
a point not favoring his self interest than on a point advancing
it. But notwithstanding the incentive to link the picketing with
the Union, Hernandez did not do so.
Additionally, Hernandez was not the only witness to have di-
rect knowledge of the picketing. As already discussed, Per-
domo also picketed and his testimony also fails to establish that
the Union planned, sponsored, supported or even gave its bless-
ing to the picketing.
Therefore, I conclude that a preponderance of the evidence
does not establish that the individuals who picketed Respondent
in May 2005 were acting on the instructions of the Charging
Party or other labor organization. Likewise, I conclude that a
preponderance of the evidence fails to establish that these pick-
ets were agents of the Charging Party or acting at its behest.
Accordingly, I further conclude that Hernandez’ participation
in the picketing did not constitute activity to “assist a labor
organization.”
Having concluded that the credited evidence is insufficient to
establish that Hernandez engaged in union activity on this occa-
sion, I now will consider whether he was engaged in other pro-
tected, concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection. Again, for reasons al-
ready discussed, I will continue to assume that for a person’s
conduct to be protected, he does not have to perform the activ-
ity in concert with other employees of his own employer.
Rather, it suffices for the person to engage in the concerted
activity with anyone who meets the broad definition of “em-
ployee” set forth in Section 2(3) of the Act.
The record provides no basis to conclude that Hernandez
picketed for the purpose of collective bargaining. Moreover,
credible evidence does not establish that Hernandez was acting
in concert with the pickets for other mutual aid or protection.
Hernandez has claimed only one motivation for his picket-
ing: Protesting the discharge of Chavez as an unfair labor prac-
tice. However, for the reasons discussed above, I have con-
cluded that Respondent’s discharge of Chavez did not violate
the Act.
Even though the picketing did not constitute an unfair labor
practice strike, it still might constitute protected activity for
mutual aid or protection if intended to improve working condi-
tions. For example, if employees truly picketed with an object
of protesting a discharge as “unfair,” that picketing would be
for their mutual aid or protection even if the “unfairness” did
not constitute an unfair labor practice. Thus, such picketing
would enjoy the Act’s protection regardless of whether it con-
stituted an unfair labor practice strike.
However, for the reasons discussed above, I do not believe
Hernandez to be a reliable witness and have not credited his
testimony. Moreover, Hernandez’ explanation of why he de-
cided to go “on strike” is particularly difficult to accept at face
value because it is so conclusory:
Q. And what did you think about Mr. Chavez’ termi-
nation?
A. That it was unfair, the way they terminate him.
Q. Did you think it was a violation of the National
Labor Relations Act?
A. Yes.
Hernandez did not elaborate either on why he considered
Chavez’ discharge to be unfair or why he believed it to vio-
late the National Labor Relations Act. On the latter point,
he gave only a 1-word answer in response to a somewhat
leading question.
The brief and conclusory nature of this testimony provides
no reason to believe that it is any more reliable than Hernandez’
other testimony, which I have not credited. Accordingly, I
cannot find that he left work and picketed for the reason he
claimed.
In sum, credible evidence does not establish that Hernandez’
activity—leaving work on May 2, 2005 and thereafter picket-
ing Respondent—was to form, join, or assist a labor organiza-
tion or to engage in collective bargaining. Similarly, credible
evidence does not prove that Hernandez engaged in this activity
for the purpose of other mutual aid or protection.
However, there is one other possibility. The record estab-
lishes that Hernandez had engaged in earlier protected activity,
trying to persuade employees to support the Union and, begin-
ning February 26, 2005, wearing union insignia at work. The
Act could protect Hernandez’ activity on May 2, 2005, and
thereafter if it constituted a continuation of this earlier protected
activity. Manno Electric, 321 NLRB 278 (1996).
In Manno Electric, the Board found that an employee’s “in-
dividual job action,” walking off a job to which he had been
discriminatorily assigned, was protected because it was a con-
tinuation of the employee’s prior group activity and because it
was in response to his employer’s unlawful discrimination.
That case, in my view, does not fit the present facts.
Hernandez did not claim that he engaged in the May 2005
“strike” for an organizing purpose. Accordingly, it is difficult
to view this cessation of work and picketing as a continuation
of earlier efforts to “sell” employees on the Union. Also,
unlike Manno Electric, the Respondent here had not discrimi-
nated unlawfully or committed other unfair labor practices.
Accordingly, I do not conclude that Hernandez’ cessation of
work and picketing in May 2005 constituted a continuation of
his earlier protected activity. See generally Lin R. Rogers Elec-
trical Contractors, 323 NLRB 988 (1997).
Nonetheless, the government has satisfied the first Wright
Line requirement by showing that Hernandez had engaged in
these earlier protected activities. The record establishes that
Hernandez tried to convince employees to support the Union
and, beginning February 16, 2005, wore union insignia at work.
Moreover, the General Counsel also has proven the second
Wright Line element, employer knowledge. Beginning on Feb-
ruary 16, 2005, Hernandez’ attire made his union affiliation
obvious and unmistakable. On that same date, the Union sent
Respondent a letter identifying Hernandez as its organizer.
Then, if not earlier, Respondent knew about Hernandez’ union
activities.
Respondent’s admission that it discharged Hernandez on
May 9, 2005, establishes the third Wright Line element.
BASIC INDUSTRIES 1277
Finally, Wright Line requires the General Counsel to prove a
link between the protected activity and the adverse employment
action. However, no persuasive evidence establishes such a
connection.
Certainly, unlawful motivation cannot be inferred from the
timing. Although Respondent became aware of Hernandez’
Union affiliation in February 2005, it did not discharge him
until almost 3 months later.
In deciding whether the interval between employer knowl-
edge and discharge is short enough to suggest a connection, all
the circumstances must be considered. If the record includes
direct evidence of employer hostility to a union, such as evi-
dence of unlawful threats or interrogations, there is reason to
believe that this antagonism might persist. As the evidence of
such animus increases, so does the possibility that it lasted long
enough to influence the discharge decision.
In the present case, we are looking for evidence of animus
strong enough to extend from February 16, 2005, when Re-
spondent learned of Hernandez’ union activities, until May,
when it decided to discharge him. However, the record does
not reveal such animus. Moreover, the complaint itself does
not allege any independent 8(a)(1) violations. It is difficult to
believe that some coals of animus remained smoldering for two
and one–half months when, in fact, the record doesn’t establish
that there had ever been a fire.
The timing suggests only one proximate cause of Hernandez’
discharge, namely, his walking off the job on May 2, 2005, and
his absence from work thereafter. For the reasons discussed
above, I have concluded that the Act did not protect this activity.
In other respects, credible evidence does not prove a link be-
tween Hernandez’ union activities and the decision to discharge
him. Therefore, I conclude that the General Counsel has not
satisfied the fourth Wright Line requirement.
Accordingly, I further conclude that Respondent did not dis-
charge Hernandez unlawfully. As discussed above, I have also
concluded that Respondent’s refusal to reinstate Hernandez
when he offered to return to work was lawful because Hernan-
dez was not an unfair labor practice striker. Therefore, I rec-
ommend that the Board dismiss all of these allegations.
However, should the Board conclude that Hernandez’ cessa-
tion of work on May 2, 2005, and his subsequent picketing do
enjoy the protection of the Act, I would recommend that it find
his discharge violative. The proximity of his May 6, 2005 dis-
charge to those activities would establish the nexus required to
satisfy the final Wright Line element.
At that point, Respondent would assume the burden of pre-
senting evidence to establish that it would have discharged
Hernandez in any event, even in the absence of his protected
activity. In my view, Respondent would not be able to carry
that burden with the evidence presently in the record.
To summarize, my conclusion that Respondent lawfully dis-
charged Hernandez depends upon whether the Act protected his
May 2, 2005 work cessation and subsequent picketing. Be-
cause I believe these activities unprotected, I recommend that
the Board find no violation. However, an opposite conclusion
regarding the protection due those activities would necessitate
the further conclusion that Respondent discharged Hernandez
unlawfully.
CONCLUSIONS OF LAW
1. The Respondent, Basic Industries, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent did not violate the Act in any manner al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended1
ORDER
The complaint is dismissed.

1 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.