Concrete Form Walls, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 2006

346 N.L.R.B. 831 (N.L.R.B. 2006)

CONCRETE FORM WALLS, INC.
346 NLRB No. 80
831
Concrete Form Walls, Inc. and Alabama Carpenters
Regional Council Local 127. Cases 10–CA–
34483, 10–CA–34584, and 10–RC–15381
April 13, 2006
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 8, 2004, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief and the Re-
spondent filed a reply 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 as
modified and to adopt his recommended Order as modi-
fied below.2
We agree with the judge that the Respondent violated
Section 8(a)(3), (4), and (1) of the Act by discharging
employees Jesus (Omar) Garcia Vela, Cesar Moreno,
Venancia Morales Serrano, and Severino Morales be-
cause they voted in the representation election. We also
agree that the Respondent violated Section 8(a)(1) of the
Act and engaged in objectionable conduct by promising
employees a wage increase on the eve of the election.
Further, we agree that the Respondent’s seven ballot
challenges should be overruled.3 Contrary to the judge,
however, we find that the Respondent did not violate
Section 8(a)(1) when a supervisor told unit employees
that the Respondent had searched one of the supervisor’s
trucks. We also reverse the judge’s finding that the Re-
spondent created the impression of surveillance of its
employees’ union activities. Finally, we agree that,

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
2 We shall modify the judge’s recommended Order to conform to the
violations found. We shall also substitute a new notice in conformity
with the Order as modified.
3 Contrary to the judge, Member Schaumber would not rely on
community-of-interest grounds to overrule the ballot challenges. In-
stead, Member Schaumber would find that because the parties’ Stipu-
lated Election Agreement does not exclude casual employees from the
unit and there is no claim that the agreement is ambiguous, the chal-
lenged employees were eligible to vote regardless of whether they are
casual employees or have a community of interest with the other em-
ployees. See, e.g., Caesar’s Tahoe, 337 NLRB 1096, 1097 (2002).
based on the Respondent’s hallmark violations of the
Act, a remedial bargaining order should issue..4
Factual Background
Since 2000, the Respondent has installed concrete
walls and footings for residential construction projects.
Eric McKenzie is the Respondent’s founder and sole
shareholder. The Respondent employs three crews of
approximately seven workers each, a three-person “foot-
ings crew,” a driver, and an office clerical. Each seven-
person crew is comprised of native Spanish speakers and
is supervised by one of three stipulated supervisors—
Nicolas Ramirez, Antonio Ramirez, or Ernesto Del
Valle.
At all relevant times, the Respondent maintained two
payroll systems. The Respondent included group I em-
ployees on its formal payroll, paid them by check, and
withheld all necessary taxes and deductions. Until the
Union’s June 2, 20035 demand for recognition, the group
I payroll included only the three non-Hispanic employees
on the footings crew, the driver, and the office clerical.
The Respondent’s group II payroll consisted of the His-
panic employees and supervisors making up its three
seven-person crews (excluding the supervisor). The Re-
spondent paid the group II employees in cash without
maintaining proper employment eligibility documenta-
tion or withholding taxes.
The Union began its organizing campaign in April
2003. The Union’s organizer, Johnny Arguedas, made
approximately 35 jobsite visits between April and June.
During these visits, Arguedas collected authorization
cards from 18 workers. Based on the signed authoriza-
tion cards, the Union made a demand for recognition on
June 2.
On June 3, Arguedas held a meeting with a number of
employees. During this meeting, Supervisor Nicolas
Ramirez relayed to the gathered employees that, earlier
in the day, Respondent’s owner, Eric McKenzie, found
union literature in Supervisor Antonio Ramirez’ personal
truck.6 Nicolas Ramirez said that after discovering the
literature, McKenzie removed it and searched the truck
for more. Also at this meeting, Supervisor Ernesto Del
Valle told the employees that earlier in the day
McKenzie told both him and Antonio Ramirez that
McKenzie wanted nothing to do with the Union and that
he would give a $1-an-hour raise to any employee who
brought in documentation enabling that employee to be
placed on the group I payroll.

4 For the reasons stated below in his partial dissent, Member
Schaumber would not issue a remedial bargaining order.
5 All dates are in 2003, unless otherwise indicated.
6Antonio Ramirez used the truck to transport employees and equip-
ment to the various worksites.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD832
On June 4, the Union filed a petition to represent a unit
of the Respondent’s production and maintenance em-
ployees, comprised of the 21 employees on the seven-
person crews, the three employees on the footings crew,
and the driver.7 Also on June 4, the Respondent placed
its three crew supervisors and five other employees on
the group I payroll after they presented the Respondent
with facially valid employment eligibility documenta-
tion. However, these employees did not receive the
promised $1-an-hour raise.8
On June 10, Arguedas held another meeting with the
employees. During this meeting, Del Valle told the em-
ployees that McKenzie called him into his office, asked
him about the Union, and told him that Antonio Ramirez
had said that Del Valle was behind the union organizing
campaign. Del Valle further explained that he later
spoke with Antonio Ramirez who told him that
McKenzie had also called him into the office, but told
him that Del Valle said that Antonio Ramirez was behind
the organizing campaign.
On June 24, the Board conducted an election at the Re-
spondent’s warehouse pursuant to a Stipulated Election
Agreement. Of the nine employees on the Excelsior list,
four voted against the Union and none voted in favor of
the Union.9 The Respondent challenged three employees
whose names appeared on the eligibility list—Severino
Morales, Cesar Moreno, and Venancia Morales
Serrano—on the ground that they were illegal aliens not
permitted to vote in the election. The Board agent chal-
lenged the ballots of four voters because the names of
those individuals, Jesus (Omar) Garcia Vela,10 Pedro

7 The petitioned-for unit description is: All production and construc-
tion employees: excluding office clerical employees, supervisors, and
guards as defined in the Act.
8 When the five nonsupervisors were included on the group I payroll,
they provided names that were different from those that they used while
they were paid cash. Eduardo Morales Serrano provided the name
“Jorge Hernandez”; Mizael del Valle provided the name “Severino
Morales”; Cesar Moreno Morales provided the name “Cesar Moreno”;
Alberto Morales Serrano provided the name “Venancia Morales
Serrano”; and Jesus (Omar) Garcia Vela provided the name “Omar
Garcia Vela.” The provided names are included on the Excelsior list.
9 The Excelsior list included nine employees, all of whom were on
the Respondent’s formal group I payroll. Marie Caton, Danny
Dickerson, Jerry Matthews, and Jerome Watkins all worked on either
the footings crew or in the driver position and were at all times in-
cluded on the formal payroll. Jorge Hernandez, Severino Morales,
Cesar Moreno, Venancia Morales Serrano, and Jesus (Omar) Garcia
Vela all worked on the seven-person crews, were all Hispanic, and
were all added to the Respondent’s formal payroll on June 4.
10 Jesus (Omar) Garcia Vela was on the eligibility list as Omar Gar-
cia, was on the Respondent’s group I payroll, and was terminated on
July 1 with the three other employees whom the Respondent chal-
lenged. For purposes of analysis, we will consider Jesus (Omar) Garcia
Vela with the Respondent’s three challenges.
Contreras, Valente Martinez, and Benjamin Romer, did
not appear on the eligibility list.
In response to the Regional Director’s June 25 request
for evidence supporting its ballot challenges, the Re-
spondent conducted internet searches on the four His-
panic group I employees who voted in the election, Jesus
(Omar) Garcia Vela, Cesar Moreno, Venancia Morales
Serano, and Severino Morales. It did so in an internet
credit database called “People Find USA.” The searches
indicated that the social security numbers provided by
the Hispanic voters did not match the names given.11
The Respondent then discharged these individuals on
July 1, 2003.12 The Respondent continued to employ a
cash basis work force at that time and continued to em-
ploy Jorge Hernandez, who had not appeared at the polls
to vote. The Respondent did not run searches of any of
the other employees.
The Judge’s Decision
The judge found that the Respondent violated Section
8(a)(1), (3), (4), and (5) of the Act and engaged in objec-
tionable conduct. Further, the judge overruled the Re-
spondent’s and the Board agent’s ballot challenges and
recommended that a remedial bargaining order issue.
The judge found that the Respondent violated Section
8(a)(1) when its supervisor, Nicolas Ramirez, told em-
ployees that owner McKenzie searched another supervi-
sor’s truck for union literature and confiscated literature
found in the truck. The judge also found that the Re-
spondent created the impression of surveillance of the
employees’ union activities in violation of Section
8(a)(1) when its supervisor told employees of the Re-
spondent’s attempt to pit two supervisors against each
other in an attempt to learn the roots of the organizing
drive. Further, the judge found that the Respondent vio-
lated Section 8(a)(1) when Del Valle told employees that
McKenzie had told the supervisors that he did not want
anything to do with the Union and that he would give a
$1-an-hour raise to any employee who brought in docu-
mentation to convert from the cash payroll to the formal
payroll (group II to group I). The judge further found that
the promised wage increase and the supervisor’s relating
to employees the Respondent’s attempt to pit its supervi-

11 Based on apparent privacy concerns, the search did not indicate to
whom the social security numbers were assigned.
12 The parties stipulated that the Respondent began its only search on
the four challenged employees after June 25. While the search dates on
many of the documents are unclear, the search material for Severino
Morales indicates that it was sent on July 2, the day after the Respon-
dent discharged Severino Morales as an undocumented worker.
CONCRETE FORM WALLS, INC. 833
sors against each other amounted to objectionable con-
duct. The judge sustained Objections 2 and 3.13
With respect to the 8(a)(3) and (4) findings, the judge
found that the Respondent violated the Act in terminating
the four Hispanic group I employees who voted in the
election. In so finding, the judge concluded that the Re-
spondent failed to meet its Wright Line14 burden because
its “People Find USA” search did not prove that the four
discharged employees did not have legal standing to
work in the United States because of their purported
alien status.
In overruling the seven ballot challenges, the judge re-
jected the Respondent’s argument that undocumented
workers are not statutory “employees.” Instead, he found
that immigration status is irrelevant to voter eligibility
and to unit determination issues. He further rejected the
Respondent’s argument that the three employees who
were omitted from the eligibility list were casual em-
ployees.
Finally, the judge found that the Respondent’s viola-
tions precluded a fair second election. He based this on
the termination of employees who voted in the election,
various postelection statements that employees who
voted in the election would not have work with the Re-
spondent, and the other violations of the Act found by
him. The judge found that a remedial bargaining order
was warranted.
The Respondent’s Exceptions
The Respondent’s arguments center around three main
themes: (1) the seven challenged voters are undocu-
mented workers and neither fall within the statutory defi-
nition of “employee” nor share a community of interest
with documented workers; (2) the Union did not have a
valid card majority; and (3) the evidence does not sup-
port the judge’s 8(a)(1) findings.
As to the first point, the Respondent relies on Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002),
to argue that undocumented workers are not statutory
employees. Alternatively, the Respondent argues that it
has a valid Wright Line defense with respect to the ter-

13 Objection 2 alleged that during the critical period prior to the elec-
tion, the Employer promised to, and subsequently did, place employees
on its noncash payroll and give them $1-per-hour pay increases in order
to induce them not to support the Union. Objection 3 alleged that the
Respondent created an impression of surveillance on June 10, the day
Ramirez told the employees of McKenzie’s attempt to pit the supervi-
sors against each other. No party excepted to the judge’s overruling of
Objections 7 and 8, which alleged that the Respondent scheduled em-
ployees on election day in a manner that impeded them from voting and
refused to release them to vote.
14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
minations because, once it discovered that the four dis-
charged employees were undocumented aliens, it was
obligated under Federal law to discontinue their em-
ployment. Second, the Respondent argues that the Union
did not have a valid card majority (1) because the em-
ployees who signed the cards were either undocumented
workers or were casual employees not eligible to vote in
the election, (2) because the Union made misrepresenta-
tions invalidating the authorization cards, and (3) be-
cause of supervisory taint. Third, the Respondent argues
that the judge improperly weighed the evidence in find-
ing that it violated Section 8(a)(1).
Analysis
The 8(a)(3) and (4) Allegations
We agree with the judge that the Respondent violated
Section 8(a)(3), (4), and (1) by terminating the four His-
panic group I employees who voted in the June 24 repre-
sentation election. Initially, we reject the Respondent’s
argument that undocumented workers are not statutory
employees.15 To the contrary, the Board has long held
that undocumented workers are properly considered
“employees” under Section 2(3)’s broad definition. See,
e.g., Duke City Lumber Co., 251 NLRB 53 (1980). The
Supreme Court has agreed. Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 892 (1984).
The Respondent’s reliance on Hoffman Plastic Com-
pounds, Inc. v. NLRB, 535 U.S. at 146, is misplaced. In
Hoffman, the Supreme Court reexamined the NLRA’s
application to undocumented workers in light of the pas-
sage of the Immigration Reform and Control Act
(IRCA), 8 U.S.C. § 1324a. The Court held that the
Board may not award backpay to undocumented workers
because such an award would run “counter to the policies
underlying IRCA, policies the Board has no authority to
enforce or administer.” Id. at 149. The Court noted,
however, that the Board has other traditional remedies at
its disposal to ameliorate unfair labor practices involving
undocumented workers. Id. at 152.
The Respondent’s argument that Hoffman mandates
that undocumented workers be excluded from the protec-
tion of the Act finds support in neither Hoffman’s lan-
guage, the legislative history of the IRCA, nor other
post-Hoffman decisions. First, Sure-Tan’s initial holding
that undocumented workers are employees under the
Act remains undisturbed by Hoffman. See Hoffman, 535
U.S. at 150 fn. 4 (“Our first holding in Sure-Tan is not at

15 Accordingly, we reject the Respondent’s arguments that Jesus
(Omar) Garcia Vela, Cesar Moreno, Venancia Morales Serrano,
Severino Morales, Pedro Contreras, Valente Martinez, and Benjamin
Moreno were ineligible to vote because they are undocumented work-
ers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD834
issue here and does not bear at all on the scope of Board
remedies with respect to undocumented workers.”). Fur-
ther, the Court’s discussion of other traditional remedies
available to the Board other than backpay orders strongly
suggests that the Court did not intend to alter course on
the general application of the Act to undocumented
workers. Second, the House Judiciary Report on the
IRCA stated:
In particular, the employer sanctions provisions are not
intended to limit in any way the scope of the term ‘em-
ployee’ in Section 2(3) of the National Labor Relations
Act (NLRA), as amended, or of the rights and protec-
tions stated in Sections 7 and 8 of that Act. As the Su-
preme Court observed in Sure-Tan Inc. v. NLRB, 467
U.S. 883 (1984) application of the NLRA “helps to as-
sure that the wages and employment conditions of law-
ful residents are not adversely affected by the competi-
tion of illegal alien employees who are not subject to
the standard terms of employment.” [467 U.S. at 893.]
House Judiciary Report on the IRCA, H.R. Rep. No. 682(I),
99th Cong. 2d Sess. 58 (1986), reprinted in USCCAN 1986,
pp. 5649, 5562 (emphasis added); EEOC v. Tortilleria “La
Mejor,” 758 F.Supp. 585, 592 (E.D. Cal. 1991). Third, we
have found no case, and the Respondent has directed us to
none, in which a court has expanded Hoffman’s holding to
exclude undocumented workers from the statutory defini-
tion of “employee” contained in any Federal labor and em-
ployment statute. Accordingly, based on longstanding
Board law and the Supreme Court’s and Congress’ explicit
approval of that law, undocumented workers remain statu-
tory employees under Section 2(3).16
Further, we agree with the judge that the Respondent
has failed to show that the discharged employees were
undocumented workers and that the Respondent dis-
charged them for that reason. In cases like this one, in-
volving 8(a)(3) and (4) violations that turn on the em-
ployer’s motivation, we apply the analysis set forth in
Wright Line, supra. Under that analysis, the General
Counsel must initially establish union or protected activ-
ity, knowledge, animus and adverse action.17 Once the

16 This analysis assumes arguendo that the persons involved here are
undocumented workers. However, as discussed below, we agree with
the judge’s conclusion that the Respondent failed to prove that they are
in fact undocumented workers.
17 Regarding the Wright Line analysis, Member Schaumber notes
that the General Counsel’s initial burden of showing discriminatory
motivation involves proving the employee’s union activity, employer
knowledge of the union activity, and animus against the employee’s
protected conduct. The Board and circuit courts of appeals have vari-
ously described the evidentiary elements of the General Counsel’s
initial burden of proof under Wright Line, sometimes adding as a fourth
element, what is otherwise inferred under the Wright Line analysis, the
General Counsel makes this initial showing, the burden
of persuasion then shifts to the Respondent to prove that
the same action would have taken place even absent any
protected activity. Central Plumbing Specialties, 337
NLRB 973, 974 (2002).
As part of his initial showing, the General Counsel
may offer proof that the respondent’s reasons for the
personnel decision were pretextual. Golden State Foods
Corp., 340 NLRB 382, 385 (2003) (“[I]f the evidence
establishes that the reasons given for the Respondent’s
action are pretextual—that is, either false or not in fact
relied upon—the Respondent fails by definition to show
that it would have taken the same action for those rea-
sons, absent the protected conduct, and thus there is no
need to perform the second part of the Wright Line
analysis.”); Laro Maintenance Corp. v. NLRB, 56 F.3d
224, 230 (D.C. Cir. 1995) (“[W]hen the employer pre-
sents a legitimate basis for its actions which the fact
finder concludes is pretextual . . . the fact finder may not
only properly infer that there is some other motive, but
that the motive is one that the employer desires to con-
ceal—an unlawful motive . . . .” (Internal quotations
omitted)).
Here, the Respondent limits its argument to the fact
that it terminated the four employees in compliance with
the IRCA because they were undocumented aliens. De-
spite having facially valid documentation showing that
the four employees were lawfully permitted to work,18
the Respondent challenged them under a suspicion that
they were undocumented workers (and based on its view,
which we have rejected, that undocumented workers are
not eligible to vote in Board-conducted elections). To
support its position that the discharged employees were
undocumented workers, the Respondent relies on the
results of an internet database search showing that the
social security numbers did not match the names the Re-
spondent entered into the database. Based on this evi-
dence alone, the Respondent terminated the four His-
panic group I employees who voted in the election.
We find that the Respondent failed to prove that the
four discharged employees were, in fact, illegal aliens.19

necessity for there to be a causal nexus between the union animus (i.e.,
Sec. 7 animus) and the adverse employment action. See, e.g., American
Gardens Management Co., 338 NLRB 644, 645 (2002). As stated in
Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), Member
Schaumber agrees with this addition to the formulation.
18 The employment verification documents were not made part of the
record. However, the Respondent apparently accepted those documents
as facially valid when it placed these employees on its formal payroll
and only questioned their veracity after the employees voted in the
election.
19 For purposes of our analysis, we assume arguendo that the Re-
spondent reasonably believed that the discharged employees were
illegal aliens. However, for the reasons set forth below, we find that
CONCRETE FORM WALLS, INC. 835
The Respondent correctly notes that the judge errone-
ously found that the database search indicated that the
social security numbers could not be found, as opposed
to the fact that they did not match the names given.
However, despite this error, the judge’s conclusion that
the reports do not prove that the employees are undocu-
mented aliens is sound.20 The reports are missing critical
information—namely, to whom the social security num-
bers are assigned. As found by the judge, each of the
discharged employees’ names changed in some signifi-
cant way after the employees were placed on the Re-
spondent’s formal payroll. This easily might explain
why the searches came back as not matching the pro-
vided names. At best, the Respondent’s evidence shows
that the employees provided false social security num-
bers for some reason, a reason not relied on by the Re-
spondent.21
Furthermore, even if the Respondent’s evidence was
sufficient to show that the four discharged employees
were undocumented workers, the Respondent’s 11th-
hour concern with complying with the IRCA is insuffi-
cient to excuse the termination of the only four Hispanic
group I employees who voted in the election. The Board
has found that an employer may violate Section 8(a)(3)
even where the employer claims that the discharge was
required under another statutory provision. See New
Foodland, Inc., 205 NLRB 418 (1973); Sure-Tan, 467
U.S. at 896 fn. 6 (“If the Board finds, as it did here, that
the otherwise legitimate reason asserted by the employer

this was not the real reason for their discharge, but merely a pretext for
unlawful discrimination.
20 A Social Security Administration “no-match” letter cannot by it-
self put an employer on notice that an employee is ineligible to work.
Immigration Employees Compliance Handbook §6:53 (West 2004).
Instead, when the Social Security Administration notifies an employer
that a provided number does not match an employee’s name, an em-
ployer is required to reverify an employee’s eligibility if its attempts to
resolve the discrepancy fail. In light of the fact that official notifica-
tions from the Social Security Administration are an insufficient basis
to summarily conclude that an employee is ineligible to work, we can-
not find that an employer may reasonably rely on a private internet
database search to conclude that an employee is ineligible to work
without any apparent attempts to reverify employment status.
21 Even this conclusion is beyond the evidence. Without providing
the names to which the social security numbers are assigned, the Re-
spondent’s evidence does not even show that the employees gave incor-
rect social security numbers, as they may match some iteration of their
names. There is no indication that the Respondent ran multiple
searches with different iterations of the employees’ names or made any
other effort to ensure the accuracy of the results. Further, there is no
evidence in the record indicating how sensitive the database is to small
differences between the inputted names and the names located in its
database. Finally, at no time did the Respondent request an explanation
of the discrepancies from the employees. Without such evidence, we
are unable to conclude that the reports even prove what they purport to
prove (that the names do not match the numbers), let alone that each
employee is an illegal alien.
for a discharge is a pretext, then the nature of the pretext
is immaterial, even where the pretext involves a reliance
on state or local laws.”). That an employer can proffer a
legitimate reason for a discharge is not a defense where
that legitimate reason was “not a moving cause of the
discharge.” New Foodland, 205 NLRB at 420. Of
course, absent a finding of unlawful motivation, it would
not be an unfair labor practice to report or discharge an
undocumented alien employee. See Sure-Tan, 467 U.S.
at 486. However, an employer cannot use compliance
with another statute as a smoke screen for its true pur-
pose of retaliating against employees for exercising their
Section 7 rights. See id.; Embers of Jacksonville, Inc.,
157 NLRB 627 (1966) (finding that employer discharged
employees in violation of the Act despite the fact that it
would have been unlawful under state law to retain the
underaged employees).
Even assuming arguendo that the discharged employ-
ees were illegal aliens, we find that the Respondent’s
new-found concern for complying with the IRCA vio-
lated Section 8(a)(3), (4), and (1). Here, the evidence
shows that the Respondent was aware that these four
employees were potentially undocumented aliens well
before they voted in the election. In fact, the Respon-
dent’s owner admits that he had suspicions and chal-
lenged the employees’ ballots based on his belief that
they were undocumented aliens. The Respondent was
content to violate the IRCA and employ workers whom
its owner believed were illegal aliens until those workers
decided to vote in a Board-conducted election. Not sur-
prisingly, the Respondent limited its concern with its
IRCA obligations to the four Hispanic group I employees
who voted in the election. The Respondent made no
attempt to discover whether its other employees were
legally permitted to work. In fact, the Respondent pur-
posefully avoided running a similar check on Jorge Her-
nandez, who provided work eligibility documentation at
the same time as the four discharged employees—the
only difference being that Hernandez did not vote in the
election.
The postelection statements of one of its supervisors
make the Respondent’s intent even clearer. On several
occasions, Supervisor Antonio Ramirez told employees,
including Benjamin Romero, who voted under challenge,
that those employees who voted in the election would not
have work with the Respondent. Accordingly, we find
that the Respondent’s selective compliance with the
IRCA was a pretext for unlawful discrimination and can-
not stand as a valid defense.
Although we conclude that the Respondent’s immigra-
tion-based defense to its ballot challenges and discrimi-
natory conduct lacks merit, we do not pass on whether
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD836
the Respondent may argue in compliance proceedings
that its backpay liability can be reduced, under Hoffman
Plastics, 535 U.S. 137, based on the discriminatees’ im-
migration status. On the one hand, the Respondent
raised the immigration-status issue, litigated it fully in
the context of both its ballot challenges and Wright Line
defense to the 8(a)(3) allegations, and we have resolved
those issues here. Thus, it could be argued that the Re-
spondent should be precluded from raising the immigra-
tion status of the discriminatees anew in compliance pro-
ceedings. On the other hand, if the Respondent has more
current evidence bearing on the status of the discrimina-
tees that was unavailable at the time the employees were
discharged; it is arguable that the Respondent should be
permitted to introduce such additional evidence at the
compliance stage. We leave the resolution of this issue
to later proceedings, if necessary.
The 8(a)(1) Allegations
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) and engaged in objectionable
conduct by promising a $1-an-hour raise to those group
II employees who provided employment verification
documentation sufficient to place them on the formal
group I payroll. As set forth in detail in the judge’s deci-
sion, the credited testimony shows that Supervisor Del
Valle related to employees the promised $1-an-hour raise
on June 3, the day after the Union requested recognition.
Despite the Respondent’s intimations to the contrary,
there is no evidence, other than the Respondent’s
owner’s self-serving and discredited testimony, support-
ing its argument that it had begun in March and April, on
the advice of its accountant, to convert employees from
the group II to the group I payroll. In light of the fact
that no employee was converted until June 4, 2 days after
the promised $1-an-hour raise, the judge correctly found
that the Respondent took no action to convert its group II
employees to group I employees until after the Union
demanded recognition. It is well settled that employer
promises or grants of benefits, such as wage increases,
are violative of Section 8(a)(1) of the Act when they are
timed to affect the election and are not consistent with
the employer’s past practice. See NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964). Given its timing, just 24
hours after the Union demanded recognition, the Re-
spondent’s promise to group II employees of a wage in-
crease if they converted to the group I payroll would rea-
sonably have been understood by employees to be solely
for the purpose of dissuading them from supporting the
Union.
While we agree that the Respondent violated Section
8(a)(1) by promising a wage increase in response to the
Union’s demand for recognition, we disagree with the
judge’s other 8(a)(1) findings.
First, the judge found that the Respondent violated
Section 8(a)(1) when Supervisor Nicolas Ramirez told a
group of employees that he witnessed Respondent’s
owner, McKenzie, search Supervisor Antonio Ramirez’
truck,22 “grab” and confiscate union literature, and con-
tinue searching for more literature in the truck. Contrary
to the judge, we do not find this conduct to be unlawful.23
It is axiomatic that supervisors are excluded from the
protection of the Act. In fact, an employer may lawfully
discharge a supervisor for engaging in prounion conduct
even though such a discharge could cause employees to
reconsider or abandon their own protected concerted
activity. Parker-Robb Chevrolet, 262 NLRB 402, 404
(1982), review denied sub nom. Automobile Salesmen’s
Union Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir.
1983). If the Respondent could have summarily dis-
charged Supervisor Ramirez for his possession of proun-
ion literature without violating the Act, it certainly could
simply search his truck, used to transport employees and
equipment, without violating the Act. A supervisor’s
informing employees of this legal action taken against
another supervisor for his or her prounion conduct does
not violate Section 8(a)(1) even if the Respondent in-
tended that the relaying of such information would quell
the employees’ organizing drive. See Parker-Robb
Chevrolet, 262 NLRB at 404 (“No matter what the em-
ployer’s subjective hope or expectation, that circum-
stance cannot change the character of its otherwise law-
ful conduct.”).

22 Antonio Ramirez used his personal truck to transport both the Re-
spondent’s equipment and employees to the jobsites. All witnesses
testified that McKenzie occasionally inspected the trucks to insure that
expensive equipment was present.
23 Contrary to her colleagues, Member Liebman would affirm the
violation found by the judge. Informing employees that a truck in
which they were known to ride had been searched for union literature,
and that such material had been confiscated, would reasonably cause
employees to assume that their union activity was under surveillance.
That the truck belonged to a supervisor is immaterial. The analogy is
not with an employer’s lawful discharge of a supervisor for engaging in
union activity, but rather with the later use of such a discharge to
threaten employees. Under Parker-Robb Chevrolet, supra, cited by the
majority, such a threat is unlawful, even if the discharge was not. See
id. at 404 fn. 19. Here, the underlying search was clearly directed at
employees, not the supervisor, and it would have been perceived that
way, especially in the context of the Respondent’s other coercive con-
duct, i.e., promising a wage increase, which McKenzie also relied upon
supervisors to communicate. Precisely because the search for union
literature was recounted by a friendly supervisor with whom employees
shared a close relationship and common language, the resultant chill on
their protected activities was likely to have greater effect.
CONCRETE FORM WALLS, INC. 837
Member Liebman notes that an employer can violate
Section 8(a)(1) if it uses lawful action taken against a
supervisor to coerce or threaten employees. While we do
not quarrel with that proposition, it does not apply to this
case. In Snyder Bros. Sun-Ray Drug, 208 NLRB 628
(1974), petition for review denied 511 F.2d 448 (D.C.
Cir. 1975), the Board found that an employer violated
Section 8(a)(1) where its store manager and its assistant
store manager told a number of employees that a super-
visor had been fired for his union activity. The Board
found that it was clear that the managers’ “remarks were
calculated to create the impression among the employees
that they would suffer the same fate as [the supervisor] if
they engaged in union activities . . . .” Id. Here, there is
no evidence that McKenzie, the Respondent’s owner,
told anyone that he had searched the supervisor’s truck
in an effort to threaten employees or attempted to use his
lawful search in any manner whatsoever. The only way
that the employees were informed of McKenzie’s search
was through a friendly supervisor, Nicolas Ramirez, who
happened to witness it (and, contrary to Member Lieb-
man’s suggestion that McKenzie “relied” on Ramirez to
communicate the search to employees, there is no evi-
dence that McKenzie told Ramirez to do so or that he
knew or believed Ramirez would do so). Under the cir-
cumstances, employees would not reasonably perceive a
threat to themselves. Nor, contrary to Member Lieb-
man’s view, would they reasonably conclude that their
union activities were under surveillance. Rather, they
would reasonably conclude that McKenzie was keeping
an eye on his supervisors’ union activities. Finally,
Member Liebman says that it is “immaterial” that the
truck belonged to a supervisor. Similarly, she says that
the search “was clearly directed at employees, not the
supervisor.” We disagree on both counts. The issue is
whether employees would reasonably view the search as
being directed at them. The fact that the truck belonged
to a supervisor is clearly “material” to that issue.
Second, the judge found that the Respondent violated
Section 8(a)(1) and engaged in objectionable conduct
when Supervisor del Valle told a group of employees
that McKenzie had called Del Valle into his office and
told him that Supervisor Antonio Ramirez told
McKenzie that Del Valle was behind the union cam-
paign. Del Valle also told the employees that he spoke
with Antonio Ramirez who told Del Valle that McKenzie
called him into the office and told him that Del Valle told
McKenzie that Ramirez was behind the union campaign.
The judge found that these statements reasonably tended
to create an impression among the employees that their
own identities and activities in support of the Union were
under surveillance.
Again, we find that this conduct directed at supervisors
does not constitute a violation of Section 8(a)(1) of the
Act. In determining whether an employer has created an
impression of surveillance, the Board examines “whether
employees would reasonably assume from the statement
in question that their union activities have been placed
under surveillance.” United Charter Service, 306 NLRB
150 (1992). Here, there is no evidence that the Respon-
dent questioned its supervisors about the employees’
protected activity and that this questioning was relayed to
the employees. Instead, all that was relayed was a con-
fusing attempt to pit two supervisors against each other.
Further, as noted above, an employer does not violate
Section 8(a)(1) when it informs its employees that lawful
action has been taken against a supervisor for engaging
in unprotected union activity. Accordingly, informing
the employees that the Respondent sought to learn the
origins of the organizing campaign by interrogating its
supervisors does not violate Section 8(a)(1). We find
that Del Valle’s statements alone fail to establish that
employees would reasonably think that their protected
activities were under surveillance.
Bargaining Order
The Board will issue a remedial bargaining order in
two categories of cases. See NLRB v. Gissel Packing
Co., 395 U.S. 575, 613–614 (1969); Hialeah Hospital,
343 NLRB 391, 395 (2004). So-called category I cases
are “exceptional cases . . . marked by unfair labor prac-
tices so ‘outrageous’ and ‘pervasive’ that traditional
remedies cannot erase their coercive effects, thus render-
ing a fair election impossible.” Hialeah Hospital, supra
(quoting Gissel, supra). Category II cases involve “‘less
extraordinary cases marked by less pervasive practices
which nonetheless still have a tendency to undermine
majority strength and impede election processes.’” Id.
(quoting Gissel, supra at 614). “In the latter category of
cases, the ‘possibility of erasing the effects of past prac-
tices and of ensuring a fair election . . . by the use of tra-
ditional remedies, though present, is slight and . . . em-
ployee sentiment once expressed [by authorization] cards
would, on balance, be better protected by a bargaining
order.’” Id. (quoting Gissel, supra). In determining the
appropriateness of a bargaining order, the Board will
consider the identity of the person who committed the
unlawful conduct, the person’s rank within the company,
and the number of employees directly affected by the
violation. Michael’s Painting, Inc., 337 NLRB 860, 861,
enfd. 85 Fed. Appx. 614 (9th Cir. 2004). However, a
Gissel bargaining order is an extraordinary remedy, and
the preferred route is to provide traditional remedies and
to hold an election “once the atmosphere has been
cleansed by those remedies.” Hialeah Hospital, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD838
Based on the Respondent’s unfair labor practices, the
judge found that this was a category I case and recom-
mended that the Board issue a bargaining order. Based
on our careful examination of the record, we agree that
this is at least a Gissel category II case.24 Accordingly,
we have evaluated the extensiveness of the Respondent’s
unfair labor practices to determine whether the Board’s
traditional remedies are sufficient to negate the coercive
impact of the violations on the employees’ right to freely
choose whether to be represented. See Michael’s Paint-
ing, Inc., 337 NLRB at 861. We find that they are not.
The Respondent’s hallmark violations of the Act, di-
rected by its president and sole shareholder, struck at the
very heart of the employees’ Section 7 rights. The Re-
spondent targeted the four Hispanic group I employees
who voted in the election, looked behind their employ-
ment verification documents, and terminated them based
on the barest of evidence that they might be undocu-
mented aliens. The fifth Hispanic group I employee who
did not vote in the election fared much better and was not
similarly investigated. As found by the judge, Supervi-
sor Antonio Ramirez told the employees that those who
voted in the election would not have work with the Re-
spondent.25 In addition to the four unlawful termina-
tions, the Respondent also violated Section 8(a)(1) by
promising a wage increase. The Respondent’s apparent
willingness to threaten employees with termination for
voting in a Board-conducted election and to follow
through on those threats casts serious doubts on whether
a fair second election can be held. See Ron Junkert, 308
NLRB 1135, 1135–1136 (1992) (bargaining order based
in part on termination of the leading union adherent in a
unit of six employees “by the highest level of ownership
and management”); Michael’s Painting, Inc., 337 NLRB
at 861 (bargaining order based in part on the unlawful
discharge of five employees in a 34-person unit and a
demand that employees provide documentation of their
immigration status before they could be paid); Transpor-
tation Repair & Service, 328 NLRB 107, 114 (1999)
(citing postelection discharge of a union supporter in a
25-person unit as making it less likely that a fair rerun
election could be held).26

24 Because we find that a remedial bargaining order should issue un-
der a category II analysis, we find it unnecessary to pass on the judge’s
conclusion that a bargaining order would be appropriate under a cate-
gory I analysis.
25 While these threats were not alleged as unfair labor practices, the
judge relied, in part, on these statements in determining that the dis-
charges violated Sec. 8(a)(3).
26 In finding it unlikely that traditional remedies would enable a fair
rerun election, the judge found that the Respondent’s “discriminatory”
postelection discharge of employee Benjamin Romero demonstrated
that the Respondent’s unfair labor practices were “continuing.” These
The coercive impact of the Respondent’s unfair labor
practices is unmistakable. First, the size of the unit was
small, consisting of 25 employees, only 17 of whom
were current or former Hispanic group II employees. In
a unit of this size, the termination of four employees who
voted in the election would have a deep and lasting im-
pact on each employee. See id. Second, the Respondent
wasted no time before beginning its campaign of unfair
labor practices. Within 24 hours of the Union’s demand
for recognition, the Respondent unlawfully promised a
$1-an-hour wage increase to those group II employees
who provided employment verification documentation
sufficient to move them to the formal group I payroll.
The same employees, who took the Respondent’s offer,
were shortly thereafter terminated simply because they
exercised their Section 7 rights to vote in a Board-
conducted election against the Respondent’s wishes.
Without minimizing the routine effectiveness of the
Board’s traditional reinstatement and notice-posting
remedies, we find that in this case such remedies cannot
erase the long-term effect of the Respondent’s unlawful
actions. The Respondent’s work force is comprised al-
most entirely of Spanish-speaking employees with ques-
tionable ability to work in the United States legally.27
Accordingly, the other Hispanic employees stand in vir-
tually the identical situation as the four discharged em-
ployees. This is unlike the typical situation where an
employer finds some employee-specific rule violation or
performance problem to justify a termination. The Re-
spondent’s message from the first election was received
clearly by the unit employees—vote in the election and
risk having your employment documentation questioned
and being terminated as an undocumented alien.28 Fur-
ther, the Respondent does not challenge the fact that the
coercive effects of the alleged unfair labor practices war-
rant a remedial bargaining order. Instead, the Respon-
dent argues (1) that it did not violate the Act and (2) that
there is not a valid card majority upon which to base a
bargaining order. Both of these contentions are without
merit.29 See United Scrap Metal, Inc., 344 NLRB 467,

findings are improper, however, because the lawfulness of Romero’s
discharge was never put at issue. In fact, the judge denied the General
Counsel’s motion to amend the complaint to allege an 8(a)(3) violation
for Romero’s discharge. Thus, in issuing a remedial bargaining order,
we place no reliance on the judge’s findings concerning that discharge.
27 Apparently the only unit employees who are not native Spanish
speakers were the four group I employees who voted without challenge
against the Union.
28 This threat is even more potent now that the Respondent has
moved all of its employees to its formal payroll.
29 The Respondent’s argument that the authorization cards were in-
validated by statements made by Arguedas is without merit. The
judge’s finding that Arguedas made no misrepresentations that would
invalidate the cards is supported by the fact that Arguedas credibly
CONCRETE FORM WALLS, INC. 839
468 (2005) (rejecting respondent’s argument that Gissel
bargaining order should not issue for want of a valid card
majority). The Respondent’s craven attempt to keep
approximately 85 percent of its work force from the polls
has so poisoned the well that it would be surprising if
any of the Hispanic employees voted in a second elec-
tion. Accordingly, we agree with the judge that the em-
ployees’ Section 7 rights are better protected through the
old card majority than through a new election.
We recognize that the Board has declined to issue a
remedial bargaining order in a number of recent cases.
See, e.g., Mc Allister Towing & Transportation Co., 341
NLRB 394, 399–400 (2004) (finding a bargaining order
not necessary where there the employer committed no
hallmark violations); High Point Construction Group,
LLC, 342 NLRB 317, 317–318 (2004), enfd. sub nom.
Mid-Atlantic Regional Council of Carpenters v. NLRB,
135 Fed. Appx. 598 (4th Cir. 2005) (employer commit-
ted a single hallmark violation in threatening to close the
plant); Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 979 (2004) (employer committed a single hallmark
violation in unlawfully awarding a pay raise). However,
unlike the Board’s more recent cases, the Respondent
committed several hallmark violations of the Act, and its
unlawful discharges affected approximately 16 percent of
the overall unit and nearly 20 percent of the Hispanic
employees. The Board’s decision in Desert Aggregates,
340 NLRB 289, 291–292 (2003), is distinguishable.
There, the Board declined to issue a bargaining order
despite the fact that the employer discriminatorily laid
off nearly 20 percent of the unit. The Board found that
the impact of these hallmark violations was mitigated by
the employer’s colorable explanation that the layoffs
were necessitated by a decline in business and the em-
ployer’s attempt to recall the two employees as soon as
business improved. Here, the Respondent’s pretextual
compliance with the IRCA cannot afford similar cover.
Instead of keeping the employees on the payroll while it
attempted to resolve the discovered potential discrepan-
cies, the Respondent fired first and asked questions
later—continuing to run searches on at least one em-
ployee the day after his termination and later requesting
that the Union provide evidence that the four discharged
employees were, in fact, documented workers.
Our dissenting colleague would not issue a bargaining
order in this case. We acknowledge that the Board has

testified that he routinely read the entire card to the employee before
the employee signed it and explained that the cards would be used to
seek voluntary recognition but that employers often refuse to grant such
recognition. Moreover, there is no evidence that any of the supervisors
engaged in any conduct that would have tainted the cards. See Harbor-
side Healthcare, Inc., 343 NLRB 906 (2004).
denied bargaining orders in cases where an employer has,
in addition to other violations of the Act, discriminatorily
discharged employees. See, e.g., Hialeah Hospital, su-
pra; Abramson, LLC, 345 NLRB No. 8 (2005). How-
ever, none of the cases relied on by our dissenting col-
league involve an employer who discharged employees
because they exercised their core Section 7 right to vote
in a Board-conducted election. Our dissenting colleague
notes that a Section 7 right is abrogated in every case in
which an employee is discriminatorily discharged prior
to an election. That is true, but the instant case involves
more than that. In a typical case, an employee is dis-
charged for certain union activity before the election. In
the instant case, the employees were discharged after the
election because they chose to cast ballots in the election.
Surely the act of voting lies at the core of the Section 7
right—a right that employees in a subsequent rerun elec-
tion would be understandably wary to exercise. We be-
lieve that there is a marked difference between the type
of interference with the Section 7 right caused by a
preelection discharge and that caused by a discharge re-
sulting directly from an employee’s exercise of that right.
The former interferes with the employee’s right to make
a free electoral choice, while the latter represents a full
frontal assault on the right to vote at all. We have found
no case, and none is cited, where a Gissel order was de-
nied in circumstances where an employer discharged an
employee simply because he cast a ballot in an election.
And, while it may be possible that the Board’s traditional
remedies, combined with the ordered reading of the
Board’s order, might cleanse the atmosphere sufficiently
to conduct a second election, such a possibility is un-
questionably slight given the Respondent’s unprece-
dented violations and the long-lasting effect that those
violations will have on its remaining workforce which is
particularly vulnerable to immigration related threats or
actions. Although the Respondent has not shown that the
discriminatees here were undocumented workers, there
may be others in the work force whose status is question-
able. It is unlikely that these vulnerable employees will
breathe a sigh of relief simply because their employer has
recited words of assurance.
We do not, as our dissenting colleague argues, under-
mine the significance and force of our special remedies.
We simply acknowledge that they alone cannot suffi-
ciently remedy unfair labor practices in every case. And,
while we agree that “dollars and cents words” may carry
more weight, we doubt that they would in this case. We
are concerned that the coercion visited on these employ-
ees will not be so easily erased.
Given the nature of the Respondent’s unlawful conduct
directed against employees who are naturally vulnerable
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD840
to threats related to immigration status, the associated
threats that those who voted in the election would not
have work, and the unlawful promise of a wage increase,
we find there is scant possibility that the Board’s tradi-
tional remedies alone might cleanse the atmosphere suf-
ficiently to provide the employees with a fair second
election. It is hard to imagine more pernicious conduct
designed to erode support for the Union and to keep em-
ployees away from the polls. In fact, the Respondent’s
threats to the Hispanic employees that those who voted
would not have work with the Respondent and the even-
tual discharge of those who voted shadowed the central
promise of the Section 7 right—the right to choose
whether to be represented or not. Accordingly, a bar-
gaining order based on the 18 signed authorization cards
in the 25-employee unit is necessary. The effect of the
investigation and eventual termination of the Hispanic
group I employees who voted, coupled with the Em-
ployer’s unlawful promised wage increase, cannot be
remedied by the Board’s traditional remedies alone.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Concrete
Form Walls, Inc., Birmingham, Alabama, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Delete paragraphs 1(a) and (b) and reletter the re-
maining paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that Case 10–RC–15381 be
severed from Cases 10–CA–34483 and 10–CA–34584
and remanded to the Regional Director for Region 10 for
action consistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
10 shall, within 10 days from the date of this decision,
open and count the ballots of Severino Morales, Cesar
Moreno, Venancia Morales Serrano, Jesus (Omar) Gar-
cia, Pedro Contreras, Valente Martinez, and Benjamin
Moreno and that he prepare and serve on the parties a
revised tally.
If the final revised tally in this proceeding reveals that
the Petitioner has received a majority of the valid ballots
case, the Regional Director shall issue a certification of
representative. This certification of representative shall
be in addition to the bargaining order.30 General Fabri-

30 Chairman Battista questions whether a Gissel bargaining order is
appropriate if the Union has won the election. A certification based
upon a victory in a secret ballot election leads to a bargaining obliga-
cations Corp., 328 NLRB 1114, 1116 fn. 17 (1999),
enfd. 222 F.3d 218 (6th Cir. 2000); Eddyleon Chocolate
Co., 301 NLRB 887, 892 (1991). If, however, the re-
vised tally shows that the Petitioner has not received a
majority of the valid ballots cast, the Regional Director
shall set aside the election, dismiss the petition, vacate
the proceedings in Case 10–RC–15381, and the bargain-
ing order alone shall take effect. Moe Warehouse & Ac-
cessory, 275 NLRB 1132 fn. 1 (1985).
MEMBER SCHAUMBER, dissenting in part.
I. A Gissel Bargaining Order is Unwarranted
in this Case
I disagree with my colleagues’ conclusion that a reme-
dial bargaining order under NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), is warranted in this case.1 A Gissel
bargaining order is an extraordinary remedy. The pre-
ferred route is to provide traditional remedies for the
unfair labor practices and to hold an election once the
atmosphere has been cleansed by those remedies.
Hialeah Hospital, 343 NLRB 391, 395 (2004); Aqua
Cool, 332 NLRB 95, 97 (2000). In addition, we have
adopted the judge’s recommended special remedy of
requiring the notice to be read aloud to employees by a
management official or a Board agent in the official’s
presence. I would find this remedy, together with the
Board’s traditional remedies, sufficient in this case.
The Respondent discharged four employees out of a
25-employee bargaining unit and committed one addi-
tional unfair labor practice by promising, but not grant-
ing, a wage increase the day after the Union demanded

tion that will have an insulated period of one year. A bargaining order,
based upon authorization cards, will lead to a bargaining obligation
with an insulated period of only a reasonable period of time. In addi-
tion, Chairman Battista questions whether it can be said that a fair
election is unlikely where the union has won the election. Notwith-
standing these doubts, the Chairman agrees to enter the Gissel bargain-
ing order now, i.e., even though there is a possibility of a certification.
In doing so, he notes that current Board precedent supports it. General
Fabrications Corp., 328 NLRB at 1116 fn. 17; Debbie Reynolds Hotel,
332 NLRB 466, 468, 477 (2000). There are not three votes to reverse
that precedent.
1 In concluding that a Gissel bargaining order is warranted, my col-
leagues improperly rely in part on their assertion that the Respondent
“does not challenge the fact that the coercive effects of the alleged
unfair labor practices warrant a remedial bargaining order.” Regardless
of whether the Respondent urged this specific argument, it clearly
excepted to the judge’s recommended Gissel order. More importantly,
“the Board has broad discretionary authority under Sec. 10(c) to fash-
ion appropriate remedies that will best effectuate the policies of the
Act,” and “remedial matters are traditionally within the Board’s prov-
ince and may be addressed by the Board in the absence of exceptions.”
Indian Hills Care Center, 321 NLRB 144 fn. 3 (1996) (internal quota-
tions omitted). Thus, even if the Respondent had failed altogether to
except to the Gissel order, that would not furnish a basis for adopting
the order.
CONCRETE FORM WALLS, INC. 841
recognition.2 Without minimizing the seriousness of the
Respondent’s conduct, it must be pointed out that the
Board has declined to impose Gissel bargaining orders in
cases involving, like this one, discriminatory separation
from employment—either discharge or refusal to return
from layoff—plus numerous other unfair labor practices.
For instance, in Hialeah Hospital, supra, the Board de-
clined to impose a Gissel bargaining order against an
employer that committed a retaliatory discharge and
many 8(a)(1) violations, including threats, surveillance,
promise of benefits, and removal of benefits. In Jewish
Home for the Elderly of Fairfield County, 343 NLRB
1069 (2004), the Board refused to impose a Gissel bar-
gaining order against an employer that, among other
things, granted a unit-wide wage increase, discharged a
leading union activist the day before the election, made
threats of plant closure, and engaged in surveillance.
And in Abramson, LLC, 345 NLRB 171 (2005), no Gis-
sel bargaining order issued against an employer that dis-
criminatorily refused to return a principal union sup-
porter from layoff and committed multiple “hallmark”
violations by threatening employees with job loss, loss of
benefits, and plant closure. The Respondent’s miscon-
duct here, while brazen, was not less capable of being
remedied without the imposition of a Gissel bargaining
order than the misconduct of the employers in these three
cases.
Contrary to the majority, that the Respondent dis-
charged employees for voting in a Board election does
not, in my view, adequately distinguish this case from
those just cited. Although I agree that an employee’s
right to vote in a Board election is a core Section 7 right,
that right is abrogated in every case in which employees
are discriminatorily discharged prior to a Board election–
such as, for example, in Jewish Home for the Elderly,
supra, by the discharge of a leading union activist the day
before the election. Since the Board declined to issue a
bargaining order in that case, I find an insufficient basis
exists to do so here.

2 The Respondent’s unfulfilled promise of a wage increase makes
this case distinguishable from those in which an employer has unlaw-
fully granted benefits, an unfair labor practice that the Board has found
“‘difficult to remedy by traditional means . . . because the Board’s
traditional remedies do not require a respondent to withdraw the bene-
fits from the employees.’” Cardinal Home Products, 338 NLRB 1004,
1011 (2003) (quoting Gerig’s Dump Trucking, 320 NLRB 1017, 1018
(1996), enfd. 137 F.3d 936 (7th Cir. 1998)).
The majority declares that there is a “marked differ-
ence” between this case and cases like Jewish Home. I
agree that the cases are not identical. In one, the dis-
criminatory discharge happens prior to the election; in
the other, it happened because employees voted in the
election. But I disagree with the majority that this differ-
ence makes a difference, such that this case warrants an
extraordinary Gissel remedy and Jewish Home did not.
In both cases, the voting right was abrogated by the
unlawful discharges, at least for the time being. The only
material difference I see is that in Jewish Home, the
Board’s remedy did not perpetuate the loss of employ-
ees’ voting right, whereas here, the Gissel remedy will.
It must be kept in mind that the interference with the
Section 7 voting right that troubles both my colleagues
and myself is not left unremedied absent a Gissel bar-
gaining order. Discharged employees are reinstated with
backpay. The employer posts (and in this case, also
reads) a notice.3 The atmosphere thus cleansed, a second
election is held. By contrast, when the Board imposes a
Gissel remedy, employees are deprived for a time of the
very Section 7 voting right the majority seeks to vindi-
cate. Sometimes that extraordinary step must be taken.
But because it limits employee free choice, the Gissel
remedy must be reserved for truly extraordinary cases.
I recognize, as my colleagues point out, that the Re-
spondent’s work force consists almost entirely of Span-
ish-speaking employees whose ability to work legally in
the United States is questionable, and therefore the Re-
spondent’s other Hispanic employees stand in virtually
the identical situation as the four discharged employees.
However, I disagree with the conclusion my colleagues
draw from these circumstances—namely, that remedies
short of a Gissel bargaining order would fail to erase the
effect of the Respondent’s unlawful actions. The Re-
spondent’s employees will hear a management official—

3 The majority undermines the significance and force of the Board’s
special notice-reading remedy by dismissively referring to it as a mere
“recit[ation of] words of assurance.” I disagree with this characteriza-
tion. As discussed more fully below, the Respondent will be announc-
ing before the gathered employees that it violated Federal labor law by,
among other things, discharging employees for voting in a Board-
conducted election, and that it is offering those employees full and
immediate reinstatement, with backpay, and with interest on that back-
pay. This announcement gives teeth to other notice provisions, includ-
ing in particular the promise, which the Respondent must also an-
nounce, that in future it will not discharge its employees for supporting
the Union or for voting in another Board-conducted election. These are
not mere “words of assurance,” as my colleagues put it, because em-
ployees will understand that complying with them is in the Respon-
dent’s financial self-interest. No matter how justifiably distrustful the
assembled employees might be, they will understand that to disobey the
Board’s Order would cost the Respondent backpay plus interest, mak-
ing obedience the cheaper alternative. They might not believe mere
words, but dollars-and-cents words carry the ring of truth.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD842
owner McKenzie, most likely—or a Board agent in the
official’s presence, read the Board’s notice. It will be
read in Spanish as well as English. It will be posted in
both languages for 60 days. Thus, employees will both
hear and read their employer’s promise (a) not to dis-
charge employees “for supporting the Union or for vot-
ing in an election conducted by the National Labor Rela-
tions Board,” (b) to offer the four discharged employees
immediate reinstatement, (c) to make those employees
whole for loss of earnings and benefits, and (d) to purge
its files of any reference to their unlawful discharge.
Situated, as they are, virtually identically with their four
discharged coworkers, the Respondent’s employees
would understand that they would receive the same pro-
tection from this Board as did their coworkers should the
Respondent decide to break its promises and repeat its
unlawful conduct. In sum, a Gissel bargaining order
trumping the employees’ Section 7 right to freely choose
a bargaining representative in a secret-ballot election is
not warranted here. The Board’s traditional remedies,
together with the special notice-reading remedy, will
suffice to cleanse the atmosphere for another election.4
II. The Majority’s Suggestion that the Respondent May
be Precluded from Litigating Immigration Status at
Compliance is Unsound
Finally, I disagree with the majority’s suggestion that
it may be proper to preclude the Respondent from litigat-
ing the discriminatees’ immigration status at a future
compliance proceeding. It is well-settled Board law that
only those issues litigated and decided in an unfair labor
practice proceeding are precluded from relitigation at an
ensuing backpay proceeding. See, e.g., Paolicelli, 335
NLRB 881, 883 (2001); Aroostook County Regional Op-
thalmology Center, 332 NLRB 1616, 1617 (2001); Arctic
Framing, Inc., 313 NLRB 798, 799 (1994). Here, the
only immigration-related issue the Board is deciding is
whether the results of the Respondent’s internet searches
in a credit database called “People Find USA” were suf-
ficient to sustain its Wright Line defense, not whether the
discriminatees are, in fact, undocumented aliens.

4 I would not include among those remedies, however, a broad
cease-and-desist order, which the judge recommended and my col-
leagues adopt. In light of the Supreme Court’s admonitions to the
Board concerning the use of broad cease-and-desist orders, see NLRB v.
Express Publishing Co., 312 U.S. 426 (1941), the specificity require-
ments of Fed.R.Civ.P. 65(d) that render such orders exceedingly diffi-
cult to enforce, and the fact that we are ordering notice reading, I be-
lieve that traditional remedies, including a “narrow” cease-and-desist
order restraining “any like or related” violations of Sec. 8(a)(1), (3),
and (4), are appropriate and sufficient to address the violations in the
instant case. I, therefore, dissent from the issuance of a broad order
restraining “any” violations of the Act. See Postal Service, 345 NLRB
409, 412–415 (2005) (Member Schaumber, dissenting in part).
The majority suggests that preclusion may apply be-
cause the Respondent raised and litigated the discrimina-
tees’ immigration status in the context of both its ballot
challenges and its Wright Line5 defense. But preclusion
cannot apply because we have not decided the status is-
sue in either of those contexts. We do not decide it in
rejecting the Respondent’s challenges to the employees’
ballots because, notwithstanding the Respondent’s argu-
ment to the contrary, undocumented aliens are employees
for purposes of the Act. Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 892 (1984). Thus, in overruling the Respon-
dent’s challenges, we do not pass on the Respondent’s
irrelevant claim that the challenged employees are un-
documented aliens because even if they are, that would
have no effect on their eligibility to vote.
We also do not decide the status issue in rejecting the
Respondent’s Wright Line rebuttal defense. Under
Wright Line, the Respondent’s burden was to show that it
would have discharged the alleged discriminatees even in
the absence of their protected activity. In making that
showing, the Respondent was, of course, limited to the
information it possessed about the discriminatees at the
time of their discharge. That information consisted of
the results of its “People Find USA” internet searches.
The Respondent could not have gone beyond those re-
sults to support its Wright Line defense because, at the
time the Respondent discharged the employees, the
internet searches were the only evidence it had of the
discriminatees’ alleged undocumented alien status.
Thus, in finding the Respondent’s Wright Line defense
pretextual, we decide only that those search results failed
to establish that the discharged employees are undocu-
mented aliens—not that the discharged employees are
not, in fact, undocumented aliens ineligible for rein-
statement under the Immigration Reform and Control
Act of 1986 (IRCA) and precluded from being awarded
backpay by the Supreme Court’s decision in Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
Because that latter issue remains undecided, the Respon-
dent is entitled to litigate it at compliance based on any
and all admisible immigration-related evidence it has
gathered by the time of or may elicit at that supplemental
proceeding.

5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 91983).
CONCRETE FORM WALLS, INC. 843
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 promise raises or other benefits in order
to encourage you to abandon support for the Union.
WE WILL NOT discharge employees for supporting the
Union or for voting in an election conducted by the
Board.
WE WILL NOT refuse to recognize and bargain with
Alabama Carpenters Regional Council Local 127 as the
exclusive collective-bargaining representative for the
following group of our employees:
All production and construction employees; excluding
office clerical employees, supervisors and guards as de-
fined by the Act.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed
by Section 7 of the Act.
WE WILL recognize and bargain exclusively in good
faith with the Alabama Carpenters Regional Council
Local 127 as the exclusive representative of the employ-
ees in the unit described above and, if an understanding
is reached, embody that understanding in a signed con-
tract.
WE WILL offer Jesus (Omar) Garcia Vela, Cesar Mo-
reno, Severino Morales, and Venancia Morales Serrano
full and immediate reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions without prejudice to seniority or other rights or
privileges.
WE WILL make whole Jesus (Omar) Garcia Vela, Cesar
Moreno, Severino Morales, and Venancia Morales
Serrano, for any loss of earnings or benefits they may
have sustained as a result of our unlawful discharge of
them, with interest.
WE WILL remove from our files all references to the
unlawful discharges of Jesus (Omar) Garcia Vela, Cesar
Moreno, Severino Morales, and Venancia Morales
Serrano, and WE WILL inform them in writing that we
have done so and that the discharges will not be used
against them in any way.
CONCRETE FORM WALLS, INC.
John Doyle, Esq., for the General Counsel.
Braxton Schell Jr., Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard by me on April 13 and 14, 2004, in
Birmingham, Alabama. The charge in Case 10–CA–34483 was
filed by the Alabama Carpenters Regional Council Local 127
(the Union) on July 3, 2003.1 The amended charge in Case 10–
CA–34584 was filed by the Union on October 14, 2003. The
order consolidating cases, amended consolidated complaint and
notice of hearing were issued by the Regional Director for Re-
gion 10 of the National Labor Relations Board (the Board) on
February 18, 2004. The consolidated complaint alleges that
Concrete Form Walls, Inc. (Concrete Form Walls, CFW, the
Company, or the Respondent) violated Sections 8(a)(1), (3),
(4), and (5) of the National Labor Relations Act (the Act). The
Respondent has by its answer denied the commission of any
violations of the Act.
On the entire record including my observation of the de-
meanor of the witnesses and after considering the trial memo-
randums of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find that at
all times material herein for the prior 12-month period, the
Respondent, with an office and place of business in Birming-
ham, Alabama, has been engaged in erecting concrete walls in
the building and construction industry, that Respondent in con-
ducting its aforesaid business operations derived gross revenues
in excess of $50, 000, in performing services for various Ala-
bama enterprises, which enterprises in turn, on an annual basis,
purchased and received goods valued in excess of $50,000 in
interstate commerce, directly from suppliers located outside the
State of Alabama and/or shipped goods to or performed ser-
vices valued in excess of $50,000 for companies located out-
side the State of Alabama and that at all material times Respon-
dent has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material, Alabama Carpenters Regional Council, Lo-
cal 127 has been a labor organization within the meaning of
Section 2(5) of the Act.

1 All dates are in 2003, unless otherwise specified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD844
III. THE APPROPRIATE UNIT
The complaint alleges, Respondent admits, and I find that the
following employees of Respondent constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All production and construction
employees; excluding office clerical employees, supervisors
and guards as defined in the Act.
IV. BACKGROUND, FACTS, AND ANALYSIS
Respondent’s business was commenced by its President Eric
McKenzie who initially worked from his home and hired em-
ployees locally on a casual basis by going to a location where
individuals gathered and made themselves available for hire on
a daily basis as casual employees. As Respondent’s business
grew it came to include three crews who were made up of a
supervisor and approximately seven employees each, who per-
formed concrete related construction work, primarily for resi-
dential subdivisions. Respondent also had a three-person crew
who prepared the footings for the construction of the founda-
tion walls by the other three crews. Respondent’s crews who
had been initially hired by the crew chiefs at the above location
consisted primarily of Hispanic employees many of whom did
not speak English. Eric McKenzie paid the employees by cash
in the approximate amount of $10,000 per week, which
McKenzie withdrew from his bank account and gave to each of
the crew chiefs for distribution among the employees on their
crews. Most of these employees including the crew chiefs were
not on a payroll and no taxes or social security payments were
deducted. At the hearing Respondent maintained that these
were merely casual employees and were not covered by the
National Labor Relations Act. However, Eric McKenzie also
testified that in March or April 2003, his accountant advised
him that he should change his method of distribution of cash to
these employees as his lack of recordkeeping could support the
conclusion that the cash he withdrew was for his own use rather
than being paid to the individuals who performed the construc-
tion work. Two groups of individuals contributed labor to the
completion of these jobs. The first group (group I) was in-
cluded on the formal payroll of Respondent and Respondent
withheld taxes and other deductions for these employees. At all
times during March 1 through July 1, 2003, the following four
individuals were included in group I:
1. Marie Caton
2. Danny Dickerson
3. Jerry Matthews
4. Jerome Watkins
The remaining individuals were not on the formal payroll but
were paid by the crew chiefs who distributed the cash they were
given by Eric McKenzie, on a weekly basis. No records were
kept of these employees for income or social security purposes
or any other purposes. At one point in his testimony at the
hearing Eric McKenzie testified he did not know the names of
most of the crew members who performed the work for his
projects.
In early 2003, the Union searched out the Respondent’s op-
erations, which were conducted throughout a number of resi-
dential subdivisions being constructed in the Birmingham, Ala-
bama area. Union organizer Johnny Arguedas testified that he
began formal organizing in April 2003. Arguedas is a native
Spanish speaker and is fluent in both English and Spanish.
Most of Arguedas’ organizing efforts of Respondent’s employ-
ees involved communicating in Spanish with members of the
non-English speaking work force of the three crews that were
on the Respondent’s cash payroll. Arguedas regularly visited
the crews’ work locations at residential construction jobsites
throughout the Birmingham area including the Rocky Ridge,
Chestnut Ridge, Highland Lakes, Scout Creek, Lake Crest,
Carrington Lakes, Chelsea, and Liberty Park subdivisions.
Between April and June 2003 he made approximately 35 job-
site visits. He visited Ernesto Del Valle’s crew on approxi-
mately 10 occasions. He visited Nicolas Ramirez’ crew on
approximately 15 to 20 or more occasions. He visited Antonio
Ramirez’ crew on approximately five occasions. He introduced
himself and met with the crew leaders and the workers. Ar-
guedas explained the Union’s purposes to the employees and
distributed union literature. He then solicited them to sign
“Tarjeta de Autorizacion” or Authorization cards.” Consistent
with training he had received from the International Union he
distributed the cards to the employees, read the language on the
cards aloud in the employees’ presence, asked the employees if
they understood the cards or had any questions. He answered
any questions and asked the employees to sign the cards. Con-
sistent with instructions he had received from the Union Lo-
cal’s director of organizing, he wrote his initials and the date on
the back of each card after observing the employees sign the
cards and they returned them to him. He obtained executed
“Tarjetas de Autorizacion” cards from 18 workers. Each of
these 18 workers was a resident of the Montevallo, Alabama
community and Arguedas had personally observed them work-
ing on the Respondent’s jobsites with either Ernesto Del Valle,
Nicolas Ramirez, or Antonio Ramirez.
Union representatives visited the home of Respondent’s
owner, Eric McKenzie, on June 2, and requested him to recog-
nize and bargain with the Union on behalf of the employees.
Respondent declined to do so and has since that time failed and
refused to recognize and/or to bargain with the Union.
McKenzie testified that he heard one of the men mention the
word “Union” and that he turned and walked away. He testi-
fied that until this occasion, he had no indication that the Union
was attempting to organize his employees.
Arguedas testified that on June 3 he met with some of the
Respondent’s workers in Montevallo, Alabama, including Luis
Arguello, Dorte Guerrero, Pedro Conteras, Valente Martines,
and Supervisors Nicolas Ramirez and Ernesto Del Valle. Ar-
guedas testified that during that meeting Supervisor Nicolas
Ramirez told him and the employees present that earlier that
morning, Respondent’s owner, Eric McKenzie, had found
“packages” of union literature in the personal truck of Supervi-
sor Antonio Ramirez and that McKenzie grabbed them and
began searching the truck for further information. Arguedas
also testified that during the meeting in Montevallo, Supervisor
Ernesto Del Valle told the employees that earlier that day Re-
spondent’s owner, Eric McKenzie, told him and Supervisor
Antonio Ramirez that he did not want the Union and would
CONCRETE FORM WALLS, INC. 845
give a $1-an-hour raise to employees who brought in proper
paperwork to be placed on the noncash payroll.
The Union filed its petition for an election on June 4 in Case
10–RC–15381. On the same day Respondent placed its three
crew chiefs, Ernesto Del Valle, Nicolas Ramirez, and Antonio
Ramirez onto the formal payroll and also converted five nonsu-
pervisory cash workers to the formal payroll.2 Although Re-
spondent had promised a $1-an-hour wage increase for conver-
sion to the formal payroll, the Respondent did not grant the
raise.
Arguedas further testified that on June 10 he met in Ernesto
Del Valle’s home in Montevallo, Alabama, with Ernesto Del
Valle, Supervisors Antonio and Nicolas Ramirez, employee
Jamie Gutierrez, and other employees. Employees Cesar Mo-
reno, Felipe RoDela, and Alfredo Del Valle lived in the same
house with Ernesto Del Valle at that time. Arguedas testified
that during the meeting Supervisor Ernesto Del Valle told him
and the other employees who were present that Owner
McKenzie had called him into the office and asked him about
the Union and told him that Supervisor Antonio Ramirez had
said that Del Valle was behind the Union. Arguedas further
testified that Del Valle then said that he had checked with An-
tonio Ramirez who told him that McKenzie had called him in
and told him that Del Valle had said that Ramirez was behind
the Union.
The parties executed and the Regional Director approved a
Stipulated Election Agreement in Case 10–RC–15381 on June
12, scheduling the election for June 24, in the unit of “All pro-
duction and construction employees, excluding office clerical
employees, supervisors and guards as defined by the Act.” On
June 13, Respondent’s attorney transmitted a “Voter Eligibil-
ity” or “Excelsior” list to the Board’s resident office in Bir-
mingham. The resident office forwarded a copy of the list to
the Union. Arguedas and another organizer reviewed the list
and found names on the list, which they did not recognize and
they decided to inquire regarding these workers’ identities.
Approximately a week or two prior to the election Arguedas
took a copy of the list to Supervisor Del Valle and told him that
the name Jorge Hernandez appeared on the list but was un-
known to him. Del Valle told him that “Jorge Hernandez” was
the name Eduardo Morales Serrano had given the Respondent
when Respondent had asked for the paperwork in return for the
raise. Arguedas then wrote the name “Eduardo Morales” next
to the name “Jorge Hernandez” on the list, Arguedas then asked
about the entry “Severino Morals” on the list and Del Valle told
him that this was the name that Mizael Del Valle had given the
Respondent when it asked for paperwork. Arguedas wrote
“Mizael Del Valle” next to the entry “Severino Morals.” Ar-
guedas next asked Supervisor Del Valle about the name “Cesar
Moreno” on the list and Del Valle told him that this was the
same person as “Cesar Moreno Morales” who had already been
signed up by the Union. Arguedas next asked Del Valle about
the entry “Venancia Morales Serrano” and Del Valle told him
this was the name Alberto Morales Serrano had given the Re-

2 Antonio Ramirez was placed on the payroll as “Ramirez Aldo
Quintana.” Although the parties stipulated that Nicolas Ramirez was
also converted to the payroll that date, he is not listed on the payroll.
spondent for the raise and Arguedas then wrote “Beto Morales”
next to the entry “Venancia Morales Serrano” on the list. Ar-
guedas asked about the entry “Omar Garcia Vela” on the list
and Del Valle told him this was the entry for “Jesus” whom the
Union had already signed up as “Jesus Omar Garcia Vela” and
Arguedas then made an abbreviated entry of “Jesu Gar.” He
made all of these entries in Supervisor Del Valle’s presence.
Additionally, at the hearing Arguedas identified Eduardo
Morales, Alberto Morales, and Mizeal Del Valle from photo-
graphs taken during a cookout at Supervisor Del Valle’s home
during the organizing campaign. He identified them as the
same employees he saw working regularly with Ernesto Del
Valle and who had signed their authorization cards.
The Union made arrangements to transport the unit employ-
ees to the polls for the June 24 election. When Arugendas vis-
ited the jobsites he learned that several multiple concrete truck
pours were scheduled for that afternoon. The Union picked up
seven employees who were willing to come and transported
them to the polls. Arguedas identified the seven voters who
had signed cards as Mizeal Del Valle, Alberto Morales Serrano,
Cesar Moreno Morales, Jesus Omar Garcia Vela, Pedro
Contreras, Valente Martines, and Benjamin Romero.
The Board conducted the election. The tally of ballots
showed that of approximately 9 eligible voters, 0 votes were
cast for union representation, 4 cast votes against union repre-
sentation, there were no void ballots and there were 7 determi-
native challenged ballots. The Union thereafter filed objections
to conduct affecting the results of the election.
Following the election, the Regional Director sent a letter re-
questing evidence regarding the eligibility of those who had
cast determinative ballots. The Respondent ran searches
through an internet credit data base “People Find USA” regard-
ing the names and social security numbers of the four Hispanic
formal payroll employees who had appeared at the polls. The
Respondent then discharged these individuals on or about July
1. The Respondent continued to employ a cash basis work
force at that time and continued to employ Jose Hernandez who
had not appeared at the polls to vote. It did not run searches of
any of the other employees.
Benjamin Romero testified that after he voted in the election,
Supervisor Antonio Ramirez told him and other crewmembers
on four or five occasions that those who voted in the election
would not have work with the Company. He also testified that
about 2 months after the election, Supervisor Antonio Ramirez
told him that because of differences between the Company and
the Union, the employees who had voted in the election would
not be working for the Respondent anymore.
A. The Alleged 8(a)(1) Allegations
The Truck Search
The complaint alleges that on about June 3, the Respondent
by Eric McKenzie at a jobsite in the Birmingham, Alabama
vicinity, in the presence of employees, searched areas of a per-
sonal vehicle where employees ordinarily keep their personal
effects and confiscated materials related to the Union from the
vehicle.
It is undisputed that on June 3 Respondent’s owner, Eric
McKenzie, searched the personal truck of Supervisor Antonio
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD846
Ramirez. Johnny Arguedas testified that he met with Supervi-
sor Nicolas Ramirez in the presence of several employees on
the evening of June 3 and that Supervisor Nicolas Ramirez, a
2(11) supervisor and a 2(13) agent of Respondent under the
Act, told them that on that day McKenzie had found “pack-
ages” of the union literature which Arguedas had distributed, in
the personal truck of Supervisor Antonio Ramirez and that
McKenzie then opened the truck and started looking through it.
Supervisor Antonio Ramirez testified at the hearing that dur-
ing the union campaign he owned a pink truck which he used
for company business to transport tools and to drive from one
jobsite to another and to transport Respondent’s employees to
their jobs from their homes. He also testified that Owner Eric
McKenzie would check his truck on occasion to insure that the
crew still had the equipment that McKenzie provided and to
check if it lacked any materials required for the jobs. He also
testified that on one occasion McKenzie found a union flyer in
his truck.
Owner Eric McKenzie testified that during the union cam-
paign, Supervisor Antonio Ramirez drove his (Ramirez’) per-
sonal truck to transfer tools and equipment among the jobsites.
He acknowledged having looked at the contents of Supervisor
Antonio Ramirez’ personal truck which he testified was routine
as he from time to time searched all of the trucks driven by the
supervisors to insure that Respondent’s tools and equipment
were still in the trucks and that the trucks had sufficient materi-
als necessary for the jobs required by Respondent.
Supervisor Ernesto Del Valle testified that during the union
campaign, Supervisor Antonio Ramirez drove his personal
truck and carried company tools on it and that employees rode
in the truck and that on occasion employees rode in the truck
while Antonio Ramirez drove a company truck from one jobsite
to another.
Analysis
I credit the specific account of Arguedas who testified con-
cerning the statements made by Supervisor Nicolas Ramirez to
Arguedas in the presence of Supervisor Del Valle and employ-
ees gathered at Del Valle’s house on the evening of June 3. I
find that Respondent’s failure to call Nicholas Ramirez to tes-
tify concerning this matter warrants an inference that his testi-
mony would have been adverse to the Respondent’s position in
this case. International Automated Machines, 285 NLRB 1122,
1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988). I find that
Arguedas testimony as to what Supervisor Nicolas Ramirez had
related to him and the gathered employees was an admission by
Nicolas Ramirez that he had observed McKenzie grab the union
literature in Antonio Ramirez’ truck and search for additional
information concerning the Union. I find that the account of
Nicholas Ramirez as relayed by Arguedas directly points out
what McKenzie did after he discovered the union literature in
Antonio Ramirez’ truck. Moreover the timing of the search of
Antonio Ramirez’ truck by McKenzie the morning following
the Union’s assertion of majority authorization card status and
its demand for recognition suggests that the search of the truck
by McKenzie was motivated by his being apprised of the union
campaign the night before by the Union’s assertion of majority
status and its demand for recognition. I find that the relation of
this incident by Supervisor Nicholas Ramirez to the gathered
employees violated Section 8(a)(1) of the Act as this recounting
of McKenzie’s search for additional union literature in the truck
was inherently coercive sufficient to draw Supervisor Nicholas
Ramirez’ attention and this conduct reasonably tended to inter-
fere with the employees’ free excise of their rights under the
Act. Naomi Knitting Plant, 328 NLRB 1279, 1280 (1999),
citing Williamhouse of California, Inc., 317 NLRB 699, 713
(1995).
B. The Promise of a Raise
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by Supervisor Ernesto Del Valle’s account by
telling employees during a meeting at his home with certain of
Respondent’s employees on the evening of June 3 that Owner
Eric McKenzie had told the supervisors that he did not want
anything to do with the Union and that he would give a $1-an-
hour raise to anyone of the employees who brought in docu-
mentation to convert from cash to the formal payroll. This
statement was related to Arguedas and the employees gathered
at the meeting by Supervisor Del Valle who was a 2(11) super-
visor and a 2(13) agent of Respondent under the Act. All of the
cash employees were employees who had been selected by
Respondent and its supervisors to perform the work and who
were paid on a cash basis. These were Spanish-speaking His-
panic employees who generally spoke very little if any English.
Owner McKenzie testified that he told supervisors he would
give a $1-per-hour raise to cash workers who brought in social
security cards and converted to the formal payroll on the rec-
ommendation of his accountant in March or April 2003, in
order that the large sums he withdrew weekly to give to his
supervisors to pay the employees would not be considered to be
income for him personally rather than to the employees who
were being paid for their work.
Supervisor Ernesto Del Valle testified that approximately 2
months prior to the Union’s request for recognition, employees
were being converted from cash to the formal payroll and that
he (Del Valle) had asked McKenzie for a $1-an-hour raise for
employees who were generally paid $8 per hour. He testified
he did not tell Arguedas and the employees at the June 3 eve-
ning meeting that McKenzie had offered the $1-per-hour raise
for employees who converted from cash to the formal payroll.
He also testified that it took around 8 days for the conversion to
become effective.
Analysis
I credit the testimony of Arguedas that Del Valle related the
offer of a $1-per-hour raise by McKenzie which was coupled
with the prior statement of McKenzie that he did not want to
have anything to do with the Union. I found Arguedas’ testi-
mony to be specific and accurate in detail as to what Del Valle
said. Arguedas pinpointed the meeting at which Del Valle
made these statements as the evening of June 3 rather than the
generalized testimony of McKenzie and Del Valle who could
not recall the dates when the payroll changes went into effect.
I find that the Respondent did not take action to convert its
cash employees to the formal payroll until it learned of the
union campaign on June 2 when the Union requested recogni-
CONCRETE FORM WALLS, INC. 847
tion. Despite the generalized testimony of Owner McKenzie to
the effect that Respondent’s accountant had advised him in
March or April to convert their employees from a cash to a
formal payroll status, there was no evidence that any employees
were converted to the formal payroll system until the week
following the June 3 meeting of McKenzie with his supervi-
sors. As the General Counsel argues in brief, it is highly likely
that the cash employees would have presented documentation
the very next day after being told they would be given a $1-per-
hour raise if they brought in documentation showing their legal
work status to be placed on the formal payroll. However, the
parties stipulated at the hearing that no one was converted from
cash to formal payroll until June 4th, 2 days after the demand
for recognition.
The accounts of Del Valle and Arguedas are at odds as Ar-
guedas testified that Del Valle relayed the promise by
McKenzie of a raise at the June 3 meeting, whereas Del Valle
denied that there had been a promise of a raise made by
McKenzie. Rather Del Valle testified that he told the employ-
ees at the June 3 meeting that he had asked for a raise. How-
ever, consistent with Arguedas’ account, McKenzie admitted at
the hearing that he had promised a raise. It is undisputed that
the raise was not given to the employees by Respondent. Fur-
thermore, Respondent’s failure to call its Supervisor Nicholas
Ramirez, who was present at the June 3 meeting when Del
Valle made these statements concerning the raise gives rise to
an inference that Ramirez would have corroborated Arguedas’
account rather than Del Valle’s.
It is well settled that the promise or grant of benefits such as
a raise made by an employer to dissuade employees from orga-
nizing violates Section 8(a)(1) of the Act. I find that Respon-
dent did promise the supervisors that the employees would be
given a raise and made this statement on the morning after
McKenzie had received and refused the Union’s request for
recognition. Del Valle’s statement as testified to by Arguedas
was that McKenzie initially told the supervisors at the June 3
morning meeting that he did not want to have anything to do
with the Union and then followed this up by telling the supervi-
sors he would grant the employees a $1-an-hour raise if they
brought in documentation in order to be placed on the payroll.
When Del Valle repeated these statements and the offer of a
raise coupled with the statement of McKenzie that he did not
want anything to do with the Union, the Respondent violated
Section 8(a)(1) of the Act. CBF, Inc., 314 NLRB 1064, 1071
(1994); Wis-Pak Foods, Inc., 319 NLRB 933, 938 (1995), cit-
ing Low Kit Mining Co., 309 NLRB 501, 507 (1992).
C. The June 10 Statements by Ernesto Del Valle
Johnny Arguedas testified that he met with Supervisors
Ernesto Del Valle, Nicolas Ramirez, Antonio Ramirez, and
several nonsupervisory employees in Montevallo, Alabama, on
June 10. He testified that at this meeting Del Valle told him
that Owner Eric McKenzie had called him (Del Valle) in earlier
that day and told him that Antonio Ramirez had told him that
Del Valle was behind the Union. Arguedas testified that Su-
pervisor Del Valle also told them that he discussed this with
Antonio Ramirez who told him that McKenzie had also called
him in and told him that Del Valle had told him that he (Anto-
nio Ramirez) was behind the Union. Ernesto Del Valle who
was called as a witness by Respondent acknowledged that he
had met with Arguedas at his home on June 10, but denied
having told Arguedas that McKenzie had told him that Antonio
Ramirez had said that he (Del Valle) was behind the Union.
Respondent did not call Nicolas Ramirez to testify and did not
inquire of Antonio Ramirez of the meeting of June 10, although
Arguedas’ unrebutted testimony placed both Nicolas and Anto-
nio Ramirez as present at the June 10 meeting. I find that the
failure to call Nicolas Ramirez as a witness and to question
Antonio Ramirez concerning this matter warrants an inference
that they would have corroborated Arguedas’ accounts.
Analysis
I credit the testimony of Arguedas concerning the statements
made by Del Valle at the June 10 meeting. I find that
McKenzie was attempting to obtain information concerning the
Union from his supervisors. This did not violate the Act as
supervisors are excluded from the protection of the Act. How-
ever, when Supervisor Del Valle told the employees present at
the June 10 meeting of the aforesaid conduct of McKenzie
regarding the interrogation and attempt to pit his supervisors
against each other, this was violative of Section 8(a)(1) of the
Act as it reasonably tended to create an impression among em-
ployees that their own identities and conduct in support of the
Union was under surveillance as Respondent was seeking in-
formation concerning their union activities. United Charter
Services, 306 NLRB 150 (1992).
D. The Discharges
The complaint alleges that Respondent discharged its em-
ployees Jesus Omar Garcia Vela, Cesar Moreno, Venancia
Morales Serrano, and Severino Morals because of their en-
gagement in union and protected activities in violation of Sec-
tion 8(a)(3) of the Act and because of their participation in a
Board representation proceeding in violation of Section 8(a)(4)
of the Act. All aspects of participation in the Board’s proc-
esses, including voting in a Board election, are protected by the
Act. Hyatt Regency Memphis, 296 NLRB 259 fn. 4 (1989).
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982) applies in cases
where the employer’s motivation is at issue. See McKesson
Drug Co., 337 NLRB 935, 936 (2002), applying Wright Line
shifting burden test to 8(a)(4) allegations. Under Wright Line,
the General Counsel has the initial burden to establish a prima
facie case of improper motivation by establishing the following
four elements:
(1) The alleged discriminatee engaged in union or protected
concerted activities;
(2) Respondent knew about such activity;
(3) Respondent took adverse employment action against the
alleged discriminatee; and
(4) There is a link or nexus between the protected activity
and the adverse employment action, Carrier Corp., 336
NLRB 1141, 1150 (2001).
Once these four elements have been established, the burden
shifts to the Respondent to prove, by a preponderance of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD848
evidence, that it took the adverse action for a legitimate nondis-
criminatory business reason.
In the instant case, the four alleged discriminates appeared at
the polls to vote in the election and their ballots were chal-
lenged by Respondent upon advice of its attorney to test the
application of the Supreme Court’s decision in Hoffman Plastic
Compound, Inc. v. NLRB, 533 U.S. 976 (2001). The employ-
ees’ right to vote is protected under Section 8(a)(4) of the Act.
The employees’ arrival at the polls to vote and their previous
signing of union authorization cards constituted protected and
union activity. The Employer had knowledge that the employ-
ees were picked up by union representatives at several jobsites
as witnessed by supervision. Respondent was also aware that
these employees had appeared at the polls and were challenged.
All four employees were discharged on or about July 1, estab-
lishing the adverse action. Respondent’s hostility toward the
Union and its supporters is established by the 8(a)(1) violations
found and by Supervisor Antonio Ramirez’ statements to em-
ployees after the election that those who voted in the election
would lose their jobs. It was stipulated that the Respondent
only ran identity checks for the four employees who voted in
the elections as they were the only Hispanic payroll employees
to appear at the polls to vote.
Respondent contends in brief as follows:
Many of the individuals who performed work for CFW
were Hispanic, as were some of the individuals who pre-
sented documentation and were added to the payroll. Oth-
ers on the CFW payroll are not of Hispanic background.
The immigration laws require an employer to check
documentation such as Social Security card at the time of
hire and not to hire anyone who cannot produce adequate
documentation. The immigration laws (and the INS web-
site and employer bulletins) instruct employers to be
evenhanded in application of these rules. An employer is
to require documentation from each applicant, whether or
not the employer may feel that it has reason to suspect the
applicant may be undocumented. Similarly, an employer
is to accept at face value documents, which appear genu-
ine and establish that the applicant is able to work in the
United States. An employer should not, without more,
make further inquiry about applicants that it may feel on
racial or cultural grounds are more likely to have presented
false documentation.
All four of the individuals voted in the election on
June 24, 2003. Prior to the election, CFW decided, as is
clearly its right, to contend both that undocumented aliens
are not employees within the meaning of the Act and that
undocumented aliens do not have a community of interest
with legal employees. The recent U.S. Supreme Court de-
cision in Hoffman Plastic Compounds, Inc., supra, sup-
ports its argument as to whether these individuals can be
covered by the NLRA. The Board’s decisions on commu-
nity of interest suggest that undocumented aliens should
be excluded from this bargaining unit. In order to preserve
its legitimate arguments, CFW was forced to challenge the
ballots of any possibly undocumented aliens. Of course,
once a ballot is cast without challenge any argument as to
that individual’s eligibility to vote is forever waived.
Even though these four individuals had presented
documentation, which appeared to be valid, it is undis-
puted that they are aliens, and at that point CFW had made
no inquiry into the validity of their documentation. Any
individuals not on the eligibility list were to be challenged
by the Board, so CFW did not take upon itself to challenge
any of its casual employees who tried to cast ballots.
CFW did not challenge the four individuals who voted be-
cause its president had personal knowledge that each of
the four were born and raised in the United States, and
thus were neither undocumented nor alien.
After the election was held, CFW received a request
from the Board’s Regional Office to submit evidence in
support of its position on its four challenges. CFW then
took steps for the first time to determine whether the
documentation (i.e., Social Security numbers) submitted
by these four individuals was in fact genuine. Had CFW
refused to respond to the Boards’ request for evidence it
would at some point have lost these challenges regardless
of the correctness of its legal argument. The searches in-
stigated by CFW demonstrated that all four of these indi-
viduals had presented false credentials in order to be
placed on CFW’s payroll. At that point, CFW was in pos-
session of information, which demonstrated that these four
individuals were undocumented aliens. A failure by CFW
to immediately discharge all four would have subjected it
to civil and criminal penalties under IRCA. CFW had no
choice—it immediately terminated these four individuals.
General Counsel will contend that these individuals
were unlawfully ‘singled out’ for further inquiry into their
status, which somehow constitutes discrimination. It is
true that CFW did not check the credentials of the four in-
dividuals who voted without challenge, and also did not
check the credentials of other employees who did not vote.
However, Eric McKenzie has testified without contradic-
tion that the four voters who went unchallenged were
known to him to be U.S. citizens by birth, so there was no
need to either challenge them or check their documenta-
tions. With respect to individuals who did not vote, em-
ployers are generally instructed by the Immigration Ser-
vice not to look behind apparently genuine documents pre-
sented at the time of application. Any employer who does
so runs obvious risks under Title VII of the Civil Rights of
Act of 1964 and otherwise for national origin discrimina-
tion.
This situation is different with respect to these four
people. CFW had to challenge their votes to preserve its
legal argument and had to obtain information on their im-
migration status to respond to the board’s request for evi-
dence and to determine whether its legal argument applied
to any of these individuals. If CFW is found liable under §
8(a)((3) for its actions with respect to these four individu-
als, it will be punished for taking a legitimate legal posi-
tion and then doing only what was absolutely necessary to
preserve that position.
CONCRETE FORM WALLS, INC. 849
CFW also notes that the discharge of these individuals
presents as clear a defense as can be imagined under
Wright Line, 252 NLRB 1083 (1980). Of course Wright
Line stands for the proposition that a discharge or other
discriminatory act, which might be found illegal because
of a finding of unlawful intent, is not a violation of Act if
the employer can demonstrate that it would have taken the
same action regardless of its intent. Here, CFW has dem-
onstrated that it would have been a federal crime for it not
to have discharged these individuals immediately upon re-
ceipt of knowledge of their status. Wright Line also man-
dates a finding that these discharges are not unlawful.
Conclusions
I find that Respondent has failed to prove that the four em-
ployees at issue in this case were illegal aliens or barred from
employment in the United States. In the Hoffman case on
which the Respondent relies, the Supreme Court reversed en-
forcement of a Board order awarding backpay to an undocu-
mented worker whom the employer hired without knowledge of
his immigration status. The Court held that the Immigration
Reform and Control Act of 1986 (IRCA) developed a compre-
hensive scheme to combat the employment of undocumented
workers in the United States. It held that IRCA foreclosed the
Board from awarding backpay to an individual who was not
legally authorized to work in the United States. It held that a
backpay award “for a job obtained in the first instance by [the
applicant’s] criminal fraud . . . not only trivializes the immigra-
tion laws, it also condones and encourages future violations.”
Hoffman, supra at 1283, 1284. It held that the discriminatee
was unable to comply with Board law requiring him to mitigate
damages by seeking lawful interim employment, id. at 1284.
However, the Court noted that the Board retained “other sig-
nificant sanctions” to deter these discharges, such as notice
posting provisions and cease and desist orders, subject to con-
tempt sanctions, id. at 1285. The Court reaffirmed its prior
holding in Sure-Tan Inc. v. NLRB, 467 U.S. 883, 892 (1984),
that undocumented aliens are employees under the Act. In
County Window Cleaning Co., 328 NLRB 190 fn. 2 (1999), the
Board overruled a challenge to an election ballot based on im-
migration status.
Respondent’s Wright Line defense failed to demonstrate by a
preponderance of the evidence that it would have discharged
the four employees even in the absence of their union or con-
certed protected activities. It is undisputed that work was
available. Respondent took no action to check the legality of
the work status of its other Hispanic employees other than the
four employees who appeared at the polls to vote. Its reliance
on the Hoffman v. NLRB case is misplaced as it did not profess
any concern about the legal status of its Hispanic employees
other than these four employees. Moreover, Respondent has
not proved by its resort to a credit locater on the Internet that
these four employees did not have legal standing to work in the
United States because of their purported alien status.
The General Counsel contends in brief that Respondent ig-
nored potential concerns of their employees’ work eligibility
status and singled out only those employees who engaged in
protected activities. He notes that in this case Respondent staffed
three crews with one supervisor and approximately seven work-
ers per crew, all of them non-English speaking and all of them
working “off the books.” Owner McKenzie withdrew approxi-
mately $10,000 in cash each week, which he distributed, to the
supervisors to pay the workers. McKenzie did not inquire con-
cerning the workers’ names, documentation, or require social
security cards of them until the advent of the Union’s request for
recognition. The General Counsel contends that Respondent was
clearly indifferent to the lack of documentation to work in the
United States of any of the employees or even the supervisors.
The General Counsel contends that the search results sup-
plied by “People Find USA” are not probative to show whether
or not the employees had documentation to work in the United
States. The failure of the credit search to match the social secu-
rity card numbers presented by these workers to the Respondent
in return for being placed on the Respondent’s payroll with the
promise of $1-per-hour raise, indicates noting more than the
social security numbers do not belong to individuals who ap-
pear in the credit databases because they have not been secur-
ing loans.
I find in agreement with the General Counsel’s position as
set out above, that Respondent failed to carry its burden of
establishing a Wright Line defense and the discharge of these
employees violated Section 8(a)(1), (3), and (4) of the Act.
E. The Bargaining Allegations
The complaint alleges that Respondent has refused to recog-
nize the Union and bargain with it in good faith. Respondent
admits that it has not recognized the Union nor bargained with
it on behalf of the unit employees and contends it has no obli-
gation to do so. The Union and the General Counsel seek a
bargaining order retroactive to June 2, 2003, when the Union
had attained bargaining status and made a demand for recogni-
tion on Respondent’s owner, Eric McKenzie, in reliance on the
single purpose authorization cards and Respondent’s unfair
labor practices which are alleged in the complaint to have been
so outrageous and pervasive as to preclude the holding of a fair
rerun election. Eighteen authorization cards out of a bargaining
unit of 25 solicited by union organizer Johnny Arguedas were
received in evidence. Arguedas testified that he personally
solicited the cards. Employee Benjamin Romero authenticated
his own card. Don the Beachcomer, 163 NLRB 275 fn. 2
(1967). These cards clearly establish that the Union had a ma-
jority of cards signed when it made its June 2 demand for rec-
ognition and bargaining. As set out above the unit description
is stipulated as “all construction and production employees,
excluding office clerical employees, supervisors and guards as
defined by the Act.” Respondent utilized two payrolls during
the period of the request for recognition and immediately there-
after. Group I consisted of employees who were at some point
on Respondent’s formal payroll. Group II employees were paid
in cash. Group I was made up of four employees. Marie
Caton, Danny Dickerson, Jerry Matthews, and Jerome Watkins
were included in the unit. Respondent contends that the indi-
viduals who joined group I as formal payroll employees (the
four discriminatees in this case) on June 4 did not have proper
documentation and were not “employees” within the meaning
of the Act and did not have a community of interest with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD850
other employees. However, the group II employees (who were
paid in cash) had regular and recurrent employment with the
Respondent. Benjamin Romero worked more than a year as a
group II cash employee on an average of 5 to 6 days a week
plus additional days in some weeks.
Arguedas testified that he made over 35 jobsite visits over
several months and with a few exceptions observed the same 25
employees working in the same crews under the same supervi-
sor from April through June 2003. Nine of these employees
were in group I (formal payroll) and 16 other employees were
not in group I. Thus, the group II individuals were regularly
employed by Respondent. The testimony of Arguedas was not
disputed nor rebutted at the hearing. The employees on the
group II cash payroll worked under the same supervisors as
group I employees and all employees were under the overall
direction of Owner McKenzie. The common supervision is
demonstrative of the community of interest between the group I
and group II employees. It was stipulated that in each crew the
employees performed the same work, used the same tools and
rode together in vehicles and had common working conditions.
The following are single purpose authorization cards clearly
authorizing the Union to act as the signer’s bargaining repre-
sentative. These cards were self-validating and have been au-
thenticated.
Autorizo a ________________________________ de la
Hermandad de Carpinteros y Ensambladores de America (la
Unión) a representarme en convenios colectivos con cualquier
patron para quien trabajare dentro de la jurisdicción de la
Unión. Entiendo que esta tarjeta puede ser utilizada para ob-
tener el reconocimiento de me actual o futuro empleador con
sin una elección. Esta autorización quedara en efecto hasta
tanto someta una revocación por escrito.
I authorize _______________________________ of the
United Brotherhood of Carpenters and Joiners of America
(“the Union”) to represent me in collective bargaining with
any employer for who I may work within the jurisdiction of
the Union. I understand that this card may be used to obtain
recognition from my current or future employer with or with-
out an election. This authorization shall remain in effect until
such time as I submit a written revocation.
There was no evidence of any misrepresentation by Ar-
guedas made to any unit employee, which would invalidate the
cards. Rather the testimony of Moreno was supportive of the
testimony of Arguedas concerning what he was told by Ar-
guedas. Amalgamated Clothing Workers v. NLRB, 419 F.2d at
1209. There was no evidence of supervisory taint of the cards
as there was no evidence of coercion or implied employer fa-
voring of the Union. It is undisputed that each of the cards was
signed in the presence of Arguedas who witnessed the signature
and the cards authenticity and signature have been validated.
The Union as of June 2 had a clear majority of 18 cards in a 25-
employee unit.
In NLRB v. Gissel Packing Co., 395 U.S. at 613–618, the
Supreme Court set out two categories of cases in which a bar-
gaining order may be warranted. Category I cases are excep-
tional cases which involve outrageous and pervasive unfair
labor practices that traditional remedies will not suffice to erase
the coercive effects of the unfair labor practices and preclude a
fair and reliable election. Category II cases are “less extraordi-
nary cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority strength and
impede the election processes.” Id at 614–615. In category II
cases a bargaining order is warranted because “the possibility
of erasing the effects of past practices and of insuring a fair
election (or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better protected
by a bargaining order.”
I find that this is a category I case in which the unlawful
conduct of discharging the four discriminates because they
voted in the NLRB election constitutes “hallmark” violations of
Section 8(a)(1), (3), and (4) of the Act and precludes the likeli-
hood of a fair and reliable election if it were to be rerun as this
conduct by the highest member of Respondent’s management,
Owner McKenzie went to the heart of the employment relation-
ship and involved not only discrimination for engaging in union
and concerted activities, but also involved interference with
Board process by thwarting the employees’ right to vote in an
NLRB conducted election. Further, the threats and discrimina-
tory discharge of Benjamin Romeo after the election demon-
strates that Respondent’s outrageous and pervasive unfair labor
practices are continuing, thus demonstrating the likelihood that
Respondent will continue in its illegal conduct designed to
frustrate the purposes of the Act. In the event that the Board
does not decide that a category I bargaining order is warranted,
I recommend a category II bargaining order.
CONCLUSIONS OF LAW
1. Respondent is an employer 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) of the Act by
searching the truck of Antonio Ramirez for union organizing
materials.
4. The Respondent violated Section 8(a)(1) of the Act by
creating among its employees the impression that it was engag-
ing in surveillance to determine their union activities.
5. Respondent violated Section 8(a)(1) of the Act by promis-
ing pay raises to employees, in order to discourage employees
from engaging in union activities.
6. Respondent violated Sections 8(a)(1), (3), and (4) of the
Act by discharging its employees Omar Garcia Vela, Cesar
Moreno, Severino Morales, and Venancia Morales Serrano
because of their engagement in union and protected concerted
activities in violation of Section 8(a)(1) and (3) of the Act and
violated Section 8(a)(1) and (4) of the Act because of their
participation in Board process by voting in the election.
7. Respondent violated Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with the Union regarding the
appropriate bargaining unit of “All construction and production
employees, but excluding office clerical employees, supervisors
and guards as defined by the Act.”
8. The above-unfair labor practices in conjunction with the
status of Respondent as an employer within the meaning of the
CONCRETE FORM WALLS, INC. 851
Act affect commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Election
On December 16, 2003, the Regional Director for Region 10
of the Board issued his Report on Challenged Ballots, and Peti-
tioners’ Objections, Order Directing Hearing, Order Consoli-
dating Cases, and Order Transferring Cases to the Board.
Pursuant to a Stipulated Election Agreement approved by the
Regional Director for Region 10 of the Board on June 12, 2003,
an election by secret ballot was conducted on June 24, 2003,
among the employees in the appropriate unit of “All production
and construction employees, excluding office clerical employ-
ees, supervisors and guards as defined by the Act” to determine
a question concerning representation raised by a petition filed
by the Petitioner United Brotherhood of Carpenters and Joiners
of America, Local 127 on June 4, 2003.
Upon conclusion of the balloting, a tally of ballots showed
that of approximately 9 eligible voters, 0 cast ballots for and 4
cast valid votes against the Petitioner. In addition there were 7
challenged ballots. The challenged ballots are sufficient in
number to affect the results of the election. On June 30, 2003,
the Petitioner filed timely objections of conduct affecting the
results of the election. After investigation of the challenges, the
Regional Director concluded that the challenges to the ballots
of Severino Morales, Cesar Moreno, Venancia Morales
Serrano, Jesus Garcia, Pedro Contreras, Valente Martinez, and
Benjamin Romero and Petitioner’s Objections 2, 3, 7, and 8
should be consolidated with Case 10–CA–34483 for hearing
before an administrative law judge and issued the Report on
Challenged ballots, Petitioner’s Objections, Order Directing
Hearing, Order Consolidating Cases, and order transferring
cases to the Board.
I find the challenges to the ballots of Severino Morales, Ce-
sar Moreno, Venancia Morales Serrano, and Jesus Garcia
should be dismissed as the Employer has failed to establish that
they are not eligible to vote. Rather the record testimony of
Johnny Arguedas in this case establishes that these individuals
were employed and performed the same work as other employ-
ees in the bargaining unit and thus have a community of interest
with the unit employees. Individuals employed by an employer
during the eligibility period and the date of the election are
entitled to vote as their immigration status is irrelevant to the
employees’ eligibility to vote. County Window Cleaning Co.,
328 NLRB 190 fn. 2 (1999). See also Superior Truss & Panel,
Inc., 334 NLRB 916, 918 (2001). In Hoffman Plastics Com-
pounds, Inc. v. NLRB, 335 U.S. 137 (2002), the Supreme Court
affirmed the principle that undocumented aliens are employees
under the Act within the definition of “employee” and are enti-
tled to vote in Board elections.
I find the challenges to the ballots of Pedro Contreras,
Valente Martinez, and Benjamin Moveno should be dismissed
as the testimony of Johnny Arguedas established that they were
employees in the unit on the day of the election when they ap-
peared to vote.
In addition, the Petitioner Union filed objections to the elec-
tion. The critical period in this case is the period of time from
the date of the filing of the petition on June 4, 2003, through the
election on June 24, 2003. The Petitioner Union filed eight
objections to the election. Pursuant to the Regional Director’s
Report on Objections, only Objections 2, 3, 7, and 8 were con-
solidated with the unfair labor practice cases for hearing and
referred to me.
In Objection 2, Petitioner contends that during the critical
period prior to the election the Employer promised to and, in
fact, subsequently did place employees on its noncash payroll
and gave them $1-per-hour pay increases in order to induce
them not to support the Petitioner. The record in this case
shows that the raise had not been received by the employees as
of the time of the hearing in this case.
I find that Objection 2 should be sustained as I found that
pursuant to Respondent’s promise of a raise to the employees
on June 3 which was coupled with the prior statement by owner
McKenzie that he did not want to have anything to do with the
Union as related to the employees by Supervisor Ernesto Del
Valle on June 3, the Respondent violated Section 8(a)(1) of the
Act. Although the June 3 date is prior to the critical period
from June 4 to the date of the election on June 24, it was on
June 4 (which was during the critical period) that the employer
actually placed the employees on its formal payroll.
In Objection 3, Petitioner contends that during the critical
period, the Employer created the impression that employees’
protected activities were under surveillance. I find that this
objection should be sustained in view of my finding that on
June 10, 2003, Supervisor Ernesto Del Valle related to employ-
ees at a meeting on that date the conduct of Owner Eric
McKenzie regarding McKenzie’s interrogation of Del Valle
and his attempt to pit his supervisors against each other to ob-
tain information concerning the Union from his supervisor,
thus, creating an impression among employees that their own
identities and conduct in support of the Union were under sur-
veillance as Respondent was seeking information concerning
their union activities.
In Objections 7 and 8, Petitioner contends that on the date of
the election June 24, 2003, the Employer scheduled and as-
signed employees in such a manner as to impede employees
from voting in the election and refused to release them from
work in an attempt to prevent them from voting in the election.
The Employer denies engaging in any objectionable conduct.
I find the evidence presented at the hearing is insufficient to
sustain these objections. There was testimony that there were
multiple concrete pours scheduled by the Employer for that
date, Owner McKenzie testified that the Employer has to accept
the concrete whenever it is available. His testimony in this
regard was unrebutted. Moreover, there was evidence that after
being contacted by the General Counsel concerning the likeli-
hood that employees would not be able to vote as scheduled,
Respondent’s counsel issued a “release letter” authorizing em-
ployees to leave their work to vote without threat of reprisals
for doing so.
In summary, I recommend that the challenges to the ballots
of Severino Morales, Cesar Moreno, Venancia Morales, Jesus
Garcia, Pedro Contreras, Valente Martinez, and Benjamin Ro-
mero should be dismissed and their votes should be counted
and certified. I also find that Objections 2 and 3 should be
sustained and Objections 7 and 8 should be overruled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD852
THE REMEDY
It having been found that Respondent has engaged in certain
unfair labor practices, it is recommended that it be ordered to
cease and desist therefrom and take certain affirmative actions
designed to effectuate the purposes of the Act including the
posting of the Board notice attached to the decision.
I shall recommend that Respondent be ordered to rescind the
unlawful discharges of Cesar Moreno, Jesus Omar Garcia Vela,
Venancia Morales Serrano, and Severino Morales, and reinstate
them to their former positions or to substantially equivalent
positions if the former positions no longer exist and make them
whole for any loss of earnings and benefits they may have suf-
fered by reason of Respondent’s unlawful discharges of them.
All loss of earnings and benefits shall be computed as pro-
vided in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed under New Horizons for the Retarded, 283
NLRB 1173 (1987).
It is further recommended that Respondent be ordered to re-
move from its records all references to the discharges of Cesar
Moreno, Jesus Omar Garcia Vela, Venancia Morales Serrano,
and Severino Morales, and to notify each of the employees that
this has been done and that evidence of such discharges will not
be used against them.
I find the Respondent’s numerous unfair labor practices war-
rant a broad cease and desist order. In view of the employment
of a number of employees who do not understand or speak
English, I recommend that the notice be posted in both English
and Spanish. I also recommend there be a public reading of the
notice by a responsible management official or by a Board
agent in the presence of a management official.
It is recommended that challenged ballots be opened and
counted and that a Certification of Representative issue if the
revised Tally of Ballots demonstrates that a majority of the
ballots were cast in favor of representation by the Union, but
otherwise that the election be set aside.
It is further recommended that upon request by the Union the
Respondent shall within 10 days of said request commence
bargaining in good faith with the Union on behalf of the unit
employees for a reasonable time and if an understanding is
reached, embody the understanding in a signed agreement.
Raven Government Services, 331 NLRB 651 (2000); Nickolas
County Health Care Center, 331 NLRB 970 (2000).
On these finding of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Concrete Form Walls, Inc., Birmingham,
Alabama, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Searching personal vehicles in which employees custom-
arily ride for materials related to union organizing campaigns.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Creating among employees the impression that it is en-
gaging in surveillance to determine their union activities.
(c) Promising pay raises to employees, in order to discourage
employees from engaging in union activities.
(d) Discharging employees because of their union activities,
participation in elections conducted by the Board concerning
union representation, or other concerted protected activities.
(e) Refusing to recognize and bargain with Alabama Carpen-
ters Regional Council, Local 127 regarding the appropriate
bargaining unit of “All construction and production employees,
but excluding office clerical employees, supervisors and guards
as defined by the Act.”
(f) Respondent shall not in any other manner interfere with,
restrain, or coerce its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer full re-
instatement to Omar Garcia Vela, Cesar Moreno, Severino
Morales, and Venancia Morales Serrano to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make the aforesaid employees whole for any loss of
earnings and other benefits with interest suffered as a result of
the discrimination against them in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of employees
Omar Garcia Vela, Cesar Moreno, Severino Morales, and Ve-
nancia Morales Serrano, and within 3 days notify the employ-
ees in writing that this has been done and that these unlawful
actions will not be used against them in any way.
(d) Immediately recognize the Union as the collective-
bargaining representative of the unit employees, retroactively to
June 2, 2003, and upon request within 10 days of the request
for bargaining by the Union commence bargaining in good faith
with the Union on behalf of the unit employees for a reasonable
time and if an understanding is reached, embody the under-
standing in a signed agreement.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(f) Within 14 days after service by the Region, post copies of
the attached notice marked “Appendix.4” Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-

4 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.”
CONCRETE FORM WALLS, INC. 853
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. The notice shall be posted in
both English and Spanish and shall be read in the presence of
all unit employees by a responsible management official or by a
Board agent in the presence of a management official and shall
also be read in Spanish by an interpreter. In the event that,
during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 2, 2003.
(g) It is further ordered that the Regional Director for Re-
gion 10 shall within 14 days from the date of this Decision and
Order, open and count the ballots of Severino Morales, Cesar
Moreno, Venancia Morales, Jesus Garcia, Pedro Contreras,
Valente Martinez and Benjamin Moreno. If the revised tally of
ballots demonstrates that a majority of the ballots were cast in
favor of representation by the Union, the Regional Director
shall then serve on the parties a revised tally of ballots and
issue the appropriate certification. Otherwise the election shall
be set aside.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.