Cardi Corp.

National Labor Relations Board - Board Decisions

Feb 25, 2009

353 N.L.R.B. 966 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 97
966
Cardi Corporation and Carpenters Local No. 94, New
England Regional Council of Carpenters a/w
United Brotherhood of Carpenters and Joiners
of America. Case 1–CA–43892
February 25, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On June 5, 2008, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respondent
filed exceptions and a supporting brief.1 The General
Counsel and the Charging Party each filed an answering
brief. Additionally, the General Counsel filed a limited
cross-exception and a supporting brief.2
The National Labor Relations Board3 has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,4 and conclusions, as modified below, and to adopt
the judge’s recommended Order as modified and set
forth in full below.
We agree with the judge that the Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally imple-
menting a rule requiring that bargaining unit employees

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 In his cross-exception and supporting brief, the General Counsel
seeks compound interest computed on a quarterly basis for any backpay
awarded. Having duly considered the matter, we are not prepared at
this time to deviate from our current practice of assessing simple inter-
est. See, e.g., Rogers Corp., 344 NLRB 504, 504 (2005).
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
4 In sec. II,B,1, par. 7 of his decision, the judge inadvertently mis-
stated several dates concerning the work history of Eddie Mejia. The
following dates are based on the uncontroverted testimony of Mejia and
Safety Director Robert Kunz. The Respondent hired Mejia in June
2002 to perform carpentry work. In November 2002, Mejia suffered a
work-related injury. From that time until late January 2003, Mejia
continued to work for the Respondent, performing light-duty work. In
late January 2003, the Respondent laid off Mejia. In May 2003, Mejia
began collecting workers’ compensation after contacting Kunz to report
that his injury had worsened. In February 2004, Mejia returned to
perform light-duty work, until his injury again worsened in the fall of
2004. Mejia ultimately underwent hip replacement surgery in Novem-
ber 2005. In November 2006, Mejia contacted Kunz to report that he
was ready to return to a full duty position because his physician had
declared him fit to work. During his recovery period from surgery,
Mejia continued to receive workers’ compensation. The judge’s inad-
vertent errors do not affect the disposition of this case.
possess a valid driver’s license as a condition of em-
ployment,5 and by enforcing its unlawful driver’s license
requirement against Eddie Mejia.6 We shall modify the
judge’s conclusions of law to include a reference to the
unlawful enforcement of the rule against Mejia.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law.
“3. The Respondent violated Section 8(a)(1) and (5)
of the Act by unilaterally implementing a rule without
notice to or bargaining with the Union requiring bargain-
ing unit employees to possess a valid driver’s license in
order to be employed at the Respondent, and by enforc-
ing that rule against Eddie Mejia.”
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act.
As we have adopted the judge’s finding that the Re-
spondent unlawfully implemented a rule requiring that
bargaining unit employees possess a valid driver’s li-
cense as a condition of employment, we shall order the
Respondent to rescind the rule.
To remedy the Respondent’s unlawful enforcement of
the rule against Eddie Mejia on November 13, 2006, we
shall order it to place Mejia in the position he would
have been in absent enforcement of the rule, including
immediate reinstatement if, absent the enforcement of the
driver’s license requirement, he would have been rein-
stated by the Respondent at any time on or after Novem-
ber 13, 2006.7 We shall also order the Respondent to

5 Applying the “clear and unmistakable waiver” standard reaffirmed
in Provena St. Joseph Medical Center, 350 NLRB 808, 811 (2007), we
agree with the judge that the Union did not waive its right to bargain
over the Respondent’s driver’s license requirement. Although Member
Schaumber adheres to the position that the Board should instead apply
a “contract coverage” test, he acknowledges that the “clear and unmis-
takable waiver” standard is extant Board law and applies it for the
purpose of deciding this case. See Verizon North, Inc., 352 NLRB
1022, 1022 fn. 2 (2008).
6 In adopting the judge’s findings, we do not rely on his citation of
Toering Electric Co., 351 NLRB 225 (2007). That case involved a
different theory of violation that is not applicable to the circumstances
of this case.
In finding that Mejia was an employee, rather than an applicant, the
judge relied on Red Arrow Freight Lines, 278 NLRB 965 (1986).
Member Schaumber acknowledges the foregoing as extant Board
precedent, but would modify the Red Arrow test for the reasons set
forth by former Member Hurtgen in Supervalu, Inc., 328 NLRB 52,
52–53 (1999) (Member Hurtgen, dissenting). See Home Care Network,
Inc., 347 NLRB 859, 860 fn. 9 (2006).
7 In light of testimony raising the question of whether unit work was
available after Mejia sought to return to work, we leave to compliance
the issue of whether Mejia, if the Respondent had not unlawfully en-
forced its driver’s license requirement against him, would have been
CARDI CORP. 967
make Mejia whole for any loss of earnings and other
benefits suffered as a result of the enforcement of the
rule.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Cardi Corporation, Warwick, Rhode Island,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally requiring that bargaining unit employ-
ees possess a valid driver’s license as a condition of em-
ployment without first giving the Union prior notice and
an opportunity to bargain over the requirement.
(b) Enforcing its unlawful driver’s license requirement
against Eddie Mejia or any other bargaining unit em-
ployee.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

reinstated at any time on or after November 13, 2006, and the related
issue of which party bears the burden of proof on this matter. The
resolution of these issues will determine the appropriateness of a rein-
statement offer and the amount of backpay owed to Mejia. If rein-
statement is found to be appropriate, the Respondent shall offer Mejia
full reinstatement to his former position, or if that position no longer
exists, to a substantially equivalent position, without prejudice to his
seniority or other rights or privileges previously enjoyed.
8 The judge’s recommended remedy provides that the Respondent
make Mejia whole for any loss of pay suffered as a result of the Re-
spondent’s unlawful unilateral change, as set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
The Ogle Protection formula, however, “applies only to remedy a
violation of the Act that does not involve cessation or denial of em-
ployment.” CAB Associates, 340 NLRB 1391, 1393 (2003). Thus, to
the extent the Respondent’s unlawful unilateral change resulted in
Mejia being denied employment, any make-whole remedy shall be in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in New Horizons for the Retarded, 283 NLRB 1173
(1987). See, e.g., Raven Government Services, 336 NLRB 991, 992
(2001), enfd. 315 F.3d 499 (5th Cir. 2002).
The Respondent shall also be ordered to reimburse Eddie Mejia for
any expenses resulting from the Respondent’s unlawful changes to its
driver’s license policy as set forth in Kraft Plumbing & Heating, 252
NLRB 891, 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), with
interest as set forth in New Horizons for the Retarded, supra.
The complaint alleges that the Respondent implemented its driver’s
license requirement between November 2006 and April 2007. The
judge, however, found that the Respondent adopted and implemented
its driver’s license requirement in “late 2005.” The parties do not dis-
pute that finding. In those circumstances, we find that it will effectuate
the policies of the Act to require the Respondent to, if necessary, mail
copies of the notice to all current and former employees employed by
the Respondent at any time since November 2005.
(a) Rescind its requirement that bargaining unit em-
ployees possess a valid driver’s license as a condition of
employment.
(b) Place Eddie Mejia in the position he would have
been in absent the enforcement of the unlawful driver’s
license requirement against him on November 13, 2006,
including, if appropriate, reinstatement, in the manner set
forth in the amended remedy section of this decision.
(c) Make Eddie Mejia whole for any loss of earnings
and other benefits suffered as a result of the enforcement
of the unlawful driver’s license requirement, in the man-
ner set forth in the amended remedy section of this deci-
sion.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful enforcement
of the driver’s license requirement against Eddie Mejia,
and within 3 days thereafter notify Eddie Mejia in writ-
ing that this has been done and that this unlawful action
will not be used against him in any way.
(e) Within 14 days after service by the Region, post at
its facility in Warwick, Rhode Island, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November
2005.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD968
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unilaterally require that bargaining unit
employees possess a valid driver’s license as a condition
of employment without first giving the Union prior no-
tice and an opportunity to bargain over the requirement.
WE WILL NOT enforce our unlawful driver’s license re-
quirement against Eddie Mejia or any other bargaining
unit employee.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the requirement that bargaining unit
employees possess a valid driver’s license as a condition
of employment.
WE WILL place Eddie Mejia in the position he would
have been in absent the enforcement of the unlawful
driver’s license requirement against him on November
13, 2006, including, if appropriate, reinstatement.
WE WILL make Eddie Mejia whole for any loss of
earnings and other benefits suffered as a result of the
enforcement of the unlawful driver’s license requirement.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any reference to the unlaw-
ful enforcement of the driver’s license requirement
against Eddie Mejia, and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and that
this unlawful action will not be used against him in any
way.
CARDI CORP.
Karen E. Hickey, Esq., for the General Counsel.
John D. O’Reilly III, Esq., of Framingham, Massachusetts, for
the Respondent-Employer.
Aaron D. Krakow, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on April 1, 2008, in Boston, Massachu-
setts, pursuant to a complaint and notice of hearing in the sub-
ject case (the complaint) issued on December 28, 2007,1 by the
Regional Director for Region 1 of the National Labor Relations
Board (the Board). The unfair labor practice charge was filed
on April 19, by Carpenters Local Union No. 94, New England
Regional Council of Carpenters a/w United Brotherhood of
Carpenters and Joiners of America (the Charging Party or the
Union) alleging that Cardi Corporation (the Respondent or the
Employer) has engaged in certain violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer to the complaint denying that
it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent has been failing
and refusing to bargain collectively and in good faith with the
Union in violation of Section 8(a)(1) and (5) of the Act by uni-
laterally implementing a rule requiring bargaining unit employ-
ees to possess a valid drivers license in order to work on one of
its jobs and subsequently enforcing the rule by refusing to re-
employ one of its employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in highway, con-
crete, and asphalt construction in the building and construction
industry at its facility in Warwick, Rhode Island, where during
the past year in conducting its business operations it has pro-
vided services valued in excess of $50,000 directly to custom-
ers located outside the State of Rhode Island. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is an employer-member of the Construction
Industries of Rhode Island, an association composed of various
employers engaged in the construction industry, one purpose of
which is to represent its employer-members in negotiating and

1 All dates are in 2007, unless otherwise indicated.
CARDI CORP. 969
administering collective-bargaining agreements with various
labor organizations, including the Union. The Association and
the Union entered into a collective-bargaining agreement effec-
tive by its terms for the period June 5, 2005, through June 7,
2009 (GC Exh. 3).
B. The 8(a)(1) and (5) Violations
1. The facts
In late 2005, the Respondent adopted and implemented a rule
requiring bargaining unit employees’ to possess a valid drivers
license in order to work on its various construction jobs. The
Respondent admits that on November 13, 2006, it refused to
consider Eddie Mejia for reemployment, due to his acknowl-
edged lack of a valid driver’s license. The Respondent further
admits that it adopted and implemented its policy without prior
notice or bargaining with the Union.
David Palmisciano, the Union’s district business manager,
has serviced the bargaining unit for approximately 9 years. He
along with fellow Business Manager William Holmes partici-
pated in collective-bargaining negotiations for the parties’ most
recent agreement. Both individuals testified that no discussions
took place during the course of those negotiations regarding a
policy that employees were required to possess a valid driver’s
license as a condition of employment and there is nothing in the
current agreement to this effect. In addition, neither of these
individuals had any independent discussions with any of Re-
spondent’s representatives that such a requirement was neces-
sary for continued employment at the Employer. Lastly, both
business managers testified that no discussions concerning the
requirement for valid driver’s licenses was undertaken in the
prior set of negotiations that led to the parties’ June 4, 2001, to
June 5, 2005 collective-bargaining agreement (GC Exh. 4).
Palmisciano further testified that the first time the Union
learned about the driver’s license requirement was in Novem-
ber 2006. At that time, employee Eddie Mejia informed
Palmisciano that the Respondent refused to re-employ him
when he was released by his physician to return to full-time
employment after being on workmen’s compensation disability.
Palmisciano noted that he immediately telephoned Respon-
dent’s safety director, Robert Kunz, who told him that the Re-
spondent had adopted such a policy. Kunz admitted, however,
that he was not aware of any written policy to this effect. He
also told Palmisciano that maybe he was not aware of the pol-
icy because the Union had not referred any employees for work
since April 2005. Around the same time, Palmisciano talked
with Respondent’s treasurer, Stephen Cardi, who informed him
that the policy was implemented during the last construction
season between the winter of 2005 and spring of 2006 for all
employees represented by labor organizations including the
Charging Party.
Kunz and Cardi apprised Palmisciano that it did periodic
checks to discern whether bargaining unit employees had valid
driver’s licenses. These checks were made on the jobsite when
employees received their paychecks or when employees were
rehired. Palmisciano testified that he checked with two of his
job stewards, James Mulcahey and Guy Alves, who informed
him that they were not aware of any such policy and that no
respondent supervisor had ever asked them whether they pos-
sessed valid driver’s licenses. Likewise, both of these stewards
told Palmisciano that they never received any notice in their
paychecks about the requirement for having a valid driver’s
license nor did other employees on the job with whom they
worked ever inform them that Respondent’s supervisors asked
about whether they had valid driver licenses.2
By letter dated November 21, 2006, Palmisciano wrote Cardi
summarizing the Union’s position that the Respondent had
added an additional requirement for employment that all em-
ployees shall possess a valid motor vehicle driver’s license (GC
Exh. 6). Palmisciano ended the letter by referring to a commu-
nication received from Cardi dated November 17, 2006, in
which there is no reference to the requirement of a driver’s
license in either the old or the new collective-bargaining
agreement (R. Exh. 1).3
Mejia testified that he has been a member of the Union since
2001 and was employed at the Respondent from June 2002
until November 2006. He noted that when he was hired in June
2002, he was not asked whether he possessed a valid driver’s
license. Mejia acknowledged, however, that during his entire
tenure at the Respondent he at no time had a valid driver’s li-
cense.
In November 2002, Mejia suffered a work-related injury. He
collected workmen’s compensation until he was able to return
to light duty. When Mejia returned to work he was not asked if
he held a valid driver’s license. Mejia was laid off in May
2003 and went on workmen’s compensation again as his hip
injury worsened. After participating in intensive physical ther-
apy sessions, Mejia returned to work at the Respondent in May
2004 performing light duty, but he was not asked whether he
possessed a valid driver’s license.4 Mejia worked on light duty
for approximately 8 months but found that his injury worsened
and after further medical evaluation and a MRI, underwent hip
replacement surgery in November 2005. After a lengthy con-
valescent period, during which he was on workmen’s compen-
sation, the doctors cleared him to return to full-time status.

2 Mulcahey and Alves both testified during the hearing that since
they became union stewards in 2004 and 2005 respectively, they have
never been asked whether they possessed valid driver’s licenses and
during the period that they both were laid off in 2004–2005 and 2007–
2008, no respondent supervisor ever inquired whether they had valid
driver’s licenses when they were recalled from layoff.
3 The Union sought to remove from the parties’ June 8, 1998, to June
3, 2001 collective-bargaining agreement, art. 21, sec. 2, that provided
Carpenters shall not be required to possess an automobile as a prerequi-
site for employment. That provision was ultimately deleted and did not
appear in the parties’ successor agreement (GC Exh. 4). Palmisciano
testified that the Union wanted to delete the provision because in their
opinion it conflicted with art. 19, sec. 3 of the agreement and it should
not be a requirement for an employee to have an automobile to get to
work, when in certain circumstances public transportation was avail-
able or an employee could car pool or be driven to work by someone
else. Palmisciano confirmed that he informed the Respondent that the
only contractual requirement was for bargaining unit employees to
arrive for work in a timely manner and put in a full day’s work.
4 Palmisciano testified without contradiction that the Respondent
previously reassigned employees to light duty after coming off work-
men’s compensation status. For example, the Respondent offered this
status to employees Curt Hancock, Kevin Gerard, and Chuck Falco.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD970
Accordingly, Mejia telephoned Kunz in November 2006 to
apprise him of his updated medical status and was told to come
in to the office in order to take a drug test and fill out employ-
ment forms. While Mejia provided Kunz with a State ID card
and his social security card, Kunz was aware from the prior
workmen’s compensation proceeding that Mejia did not possess
a valid driver’s license. Kunz informed Mejia, during the meet-
ing, that the owners required employees to have a valid driver’s
license to work at the Respondent. Mejia replied, that he
worked before without a driver’s license and had never been
asked about or required to have a valid driver’s license as a
condition of employment. Kunz promised to look into the mat-
ter and several days later informed Mejia that the Respondent’s
policy was that a valid driver’s license was required to work at
the Respondent and presently there was no work available.5
Subsequent to meeting with Kunz, Mejia met with Palmis-
ciano to inform him about the new driver’s license policy.
Thereafter, at the urging of Palmisciano, he applied for and
obtained his driver’s permit. In February 2007, he received his
permanent driver’s license.
During the period between June 2002 and November 2006,
when Mejia was employed at the Respondent, he never re-
ceived any written or oral notification that his employment was
terminated.
2. Position of the parties
The General Counsel and the Charging Party argue that the
Respondent’s rule or policy requiring bargaining unit employ-
ees to possess a valid driver’s license was implemented without
the Union’s consent, without notice to the Union, and without
affording the Union an opportunity to bargain with respect to
the conduct and effects of the conduct. Thus, the General
Counsel seeks a status quo ante remedy, an opportunity for the
Union to negotiate and reinstatement and backpay for Mejia
with quarterly compounded interest.
The Respondent first argues that Mejia was an applicant for
employment when he met with Kunz in November 2006, and
not an employee within the meaning of Section 2(3) of the Act.
Accordingly, they opine that in the absence of a reasonable
expectation of employment or re-employment there is no obli-
gation to negotiate or make him whole.
Second, the Respondent asserts that since the possession of a
valid driver’s license is a necessary requirement for employ-
ment on highway construction projects where employees are
frequently required to drive their own vehicles, as well as com-
pany vehicles on company business, the possession of a valid
driver’s license is not a mandatory subject for the purpose of
collective bargaining.
Lastly, the Respondent contends that the underlying charge
was not filed within the period of time set forth in Section 10(b)
of the Act.
3. Legal principles
An employer violates Section 8(a)(1) and (5) of the Act if it
makes a unilateral change in wages, hours, or other terms and
conditions of employment without first giving the Union notice

5 Kunz testified that no carpentry employees were hired until April
2007.
and an opportunity to bargain. See NLRB v. Katz, 369 U.S.
736, 743 (1962). The Board has held that changes in job re-
quirements or job qualifications are mandatory subjects of bar-
gaining. Public Service Co. of Oklahoma (PSO), 334 NLRB
487 (2001). However, where an employer’s action does not
change existing conditions, the employer does not violate the
Act. An established past practice can become part of the status
quo. Accordingly, the Board has found no violation of the Act
where an employer has followed a well-established past prac-
tice. Luther Manor Nursing Home, 270 NLRB 949, 959
(1984), affd. 772 F.2d 421 (8th Cir. 1985).
An employer may also avoid a finding of violation if it can
show that the union waived bargaining regarding the subjects of
the unilateral changes. A waiver of bargaining rights by a un-
ion is not to be lightly inferred, but rather must be demonstrated
by the union’s clear and explicit expression. Beverly Health &
Rehabilitation Services, 335 NLRB 636 (2001); Rockford
Manor Care Facility, 279 NLRB 1170, 1172 (1986).
Section 10(b) is a statute of limitations and is not jurisdic-
tional in nature. The Respondent has the burden of showing
that the Union knew or should have known prior to the 10(b)
period that the driver’s license policy was in effect. Dutchess
Overhead Doors, 337 NLRB 162 (2001).
4. Analysis
The Respondent’s defenses as alleged above have not been
sustained by record testimony. In this regard, the Respondent
did not establish that the practice in the industry is to require
journeymen carpenters to possess a valid driver’s license when
working on jobsites. While the Respondent did establish that
carpenter foremen are often requested to drive company vehi-
cles on the jobsite or on occasions transport or pick up supplies
from off-site locations to the job, it did not conclusively estab-
lish that journeymen carpenters are required to perform these
responsibilities. Indeed, Kunz was only able to point to one
journeyman carpenter, Chris Hartman, who he observed driving
a company vehicle on the jobsite. He could not articulate how
often this occurred or how many times Hartman drove the
company vehicle while working for the Respondent.6 While
Kunz opined that he observed other journeymen carpenters
drive company vehicles, when pressed, he could not identify
any other individuals. Kunz testimony was contrary to the two
job stewards who credibly testified that carpenter foreman
rather then journeymen carpenters routinely drove company
vehicles on the jobsites. Nor was the Respondent able to estab-
lish that employees were routinely asked whether they pos-
sessed valid driver’s licenses either by written communication
or after employees returned to work from seasonal layoffs.
Both union stewards credibly testified that they had never been
asked whether they held valid driver’s licenses after returning
from layoff’s or at any time by their supervisors.
As it concerns the Respondent’s argument that the Union
waived its rights to contest the driver’s license policy during

6 It was estimated that employee Chris Hartman worked approxi-
mately 2000 hours over the last year but Kunz was unable to establish
how many of these hours or how often he observed Hartman drive a
company vehicle. It is noted that the Respondent does not maintain any
job description for Carpenter bargaining unit employees.
CARDI CORP. 971
prior collective-bargaining negotiations, no such evidence was
presented by the Employer. While the Respondent argues that
the Union’s request to remove article 21, section 2, from the
parties’ agreement stands for the proposition that employees
must have valid driver’s licenses as a condition of employment,
such a position does not withstand scrutiny. While the deleted
provision provided that journeymen carpenters shall not be
required to possess an automobile as a prerequisite for em-
ployment, one can not make the jump to the proposition that
journeymen carpenter employees must have valid driver’s li-
censes to be employed at the Respondent. The Union’s posi-
tion that employee’s may get to work in any manner including
public transportation, carpooling, or by being dropped off at the
jobsite by a family member or friend is reasonable when the
Union sought to remove the requirement of an automobile from
the parties’ agreement. Concluding, as the Employer suggests,
that journeymen carpenter employees must have a valid
driver’s license does not logically follow as the record confirms
that they have not been required nor have they regularly driven
company vehicles as part of their job responsibilities.
While the record confirms that the Respondent terminated
several employees who did not possess valid driver’s licenses,
these actions took place based on reasonable suspicion of a
specific problem involving those individuals. For example,
when the Respondent became aware of a traffic-related offense
or DWI infraction that it learned about in the newspaper or a
complaint from an incumbent employee, it took the action. It is
noted that two of the employees that were terminated were
removed in early 2007, a period of time after Mejia was refused
full-time employment because of not possessing a valid driver’s
license. I also note that none of the employees terminated by
the Respondent for lack of a driver’s license were carpenters.
I also reject Respondent’s argument that Mejia was an appli-
cant and not an employee when he contacted Kunz to seek to
return to full-time employment after being approved to do so by
his physician.7 The Board has held that an employee on sick or
maternity leave is presumed to continue in an employment
status unless and until the presumption is rebutted by an af-
firmative showing that the employee has been discharged or has
resigned. Red Arrow Freight Lines, 278 NLRB 965 (1986).
Thus, the Respondent’s argument that Mejia has no “reasonable
expectation of employment” and is not an employee within the
meaning of Section 2(3) of the Act has not been established. In
this regard, such a test applies to employees that have been laid
off which is not the case herein. Indeed, the past practice of the
Respondent is normally to retain employee’s who have suffered
work-related injuries returning them first to light duty when
medically cleared, and then to reinstate them to full-time em-
ployment. The record confirms that Mejia was returned to light
duty on at least two occasions in between his recuperative pe-
riod while on workmen’s compensation. Therefore, the em-
ployment relationship was uninterrupted and he continued to
maintain his employee status during the period between No-

7 The Board held in Toering Electric Co., 351 NLRB 225 (2007),
that even an applicant for employment is protected under the Act.
Here, there is no question that Mejia exhibited a “genuine interest” in
seeking employment with the Respondent.
vember 2005 and November 2006, when he regularly received
checks under the Respondent’s workmen’s compensation in-
surance policy. J. P. Stevens & Co., 247 NLRB 420, 482
(1980) (individuals on leave and receiving workers’ compensa-
tion are considered employees). Lastly, and most significant,
the Respondent never orally or in writing terminated Mejia’s
employment relationship during the entire period of his tenure
and in November 2006, he was put on the payroll and paid for
hours worked, conclusive evidence that he was an employee.
Thorn Americas, Inc., 314 NLRB 943 (1994).
Additionally, the Respondent did not meet its burden that the
underlying unfair labor practice charge was untimely filed. The
evidence presented conclusively establishes that the Union did
not learn of the requirement that a valid driver’s license was
necessary for continued employment until November 2006.
Indeed, Kunz acknowledged that the Union probably did not
know of the requirement, which was never reduced to writing,
until November 2006 since the Union had not provided any
carpenters to the Respondent since April 2005. Therefore, the
April 19 charge in this matter was timely filed.
For all of the above reasons, and particularly noting that the
Respondent admits that it did not notify the Union in advance
or engage in negotiations over the driver’s license requirement,
I find that the Respondent has violated Section 8(a)(1) and (5)
of the Act by its unilateral action.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing a rule without notice to or
bargaining with the Union requiring bargaining unit employees
to possess a valid driver’s license in order to be employed at the
Respondent.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I recommend that the
Respondent be ordered to restore, for unit employees, the terms
and conditions that existed before the 2005 unilateral changes
to its driver license policy, and to maintain those terms in effect
until the parties have bargained to agreement or a valid im-
passe, or the Union has agreed to changes. I recommend that
the Respondent be ordered to reinstate employee Eddie Mejia
to his former position or a similarly situated position and to
make him whole for any loss of pay he suffered as a result of
the Respondent’s unlawful implementation of its 2005 changes
to their driver license policy, as set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). In addition, I recommend that
the Respondent be ordered to reimburse Eddie Mejia for any
expenses resulting from the Respondent’s unlawful changes to
its driver license policy as set forth in Kraft Plumbing & Heat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD972
ing, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir.
1981), with interest as set forth in New Horizons for the Re-
tarded, supra.8

8 Since the undersigned must apply current Board precedent, any
[Recommended Order omitted from publication.]

change in the manner that interest on backpay is computed must be
undertaken by the Board.