Davey Roofing, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 2004

341 N.L.R.B. 222 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
Davey Roofing, Inc. and United Union of Roofers,
Water Proofers, and Allied Workers, Local 162,
AFL–CIO. Case 28–CA–16394
February 19, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 28, 2001, Administrative Law Judge
Burton Litvack issued the attached decision. The central
issues1 in this case are whether the judge correctly found
that the Respondent violated Section 8(a)(3) and (1) of
the Act by laying off employees Celestino Gonzales,
Martin Gonzalez, and Ricardo Camarena, and by dis-
charging employees Jesus Camargo and Jose Ramirez.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3
With regard to the central issues in this case, we agree
with the judge’s conclusions that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act when it laid off
employees Celestino Gonzales, Martin Gonzalez, and

1 Other issues presented are whether the judge correctly found that
the Respondent violated Sec. 8(a)(1) of the Act by interrogating Jose
Ramirez about his union activities and by conditioning Ramirez’ rein-
statement on his agreement to refrain from union activity.
No exceptions were filed to the judge’s dismissal of the allegations
that the Respondent, by the actions of Salvador Guardado, interrogated
employee Jesus Camargo about his union activities, unlawfully en-
gaged in surveillance of employees’ union activities, informed employ-
ees that it would be futile for them to support the Union, and threatened
employees with suspension and discharge for supporting the Union.
2 The Respondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed answering briefs. The
Respondent filed reply briefs. The General Counsel and the Charging
Party filed cross-exceptions and supporting briefs. The Respondent
filed answering briefs.
3 The Board has considered the decision and the record in light of the
exceptions, cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions only to the extent consistent
with this Decision and Order and to adopt the recommended Order.
The General Counsel and the Respondent have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In addition, the Respondent contends in its exceptions that some of
the judge’s findings and conclusions demonstrate bias and prejudice.
On careful examination of the judge’s decision and the entire record,
we are satisfied that such contentions are without merit.
We shall modify the judge’s recommended Order to conform to the
violations found, and in accord with Excel Container, 325 NLRB 17
(1997), and Indian Hills Care Center, 321 NLRB 144 (1996). We shall
substitute the attached notice in accordance with our decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001).
Ricardo Camarena.4 Contrary to the judge however, we
find that the Respondent did not violate Section 8(a)(3)
and (1) of the Act when it discharged employees Jose
Ramirez and Jesus Camargo. We conclude that the Re-
spondent established that it would have discharged these
employees for insubordination even in the absence of
their union activities.
A. Background
The Respondent is a California-based roofing contrac-
tor that does business in Las Vegas, Nevada. Patrick
Kay is the Respondent’s vice president of operations;
Steve Howard is the manager of the Respondent’s Las
Vegas office and warehouse; and Salvador Guardado is a
field superintendent for the Respondent at its Las Vegas
facility. The Respondent’s employees in Las Vegas are
classified as operators, loaders, or roofers—depending on
their work duties.
A campaign to represent the Respondent’s residential
roofing employees was launched in the summer 1999 by
the United Union of Roofers, Water Proofers, and Allied
Workers, Local 162, AFL–CIO (the Union). The Re-
spondent’s knowledge of the Union’s organizing activi-
ties is not in dispute.
On Friday, January 21, 2000,5 a union-sponsored or-
ganizing rally was conducted at the Employer’s Las Ve-
gas facility. Between 50 and 60 employees participated
in the rally, which lasted approximately 1 to 1-1/2 hours.
Employees Gonzales, Gonzalez, Ramirez, and Camargo
attended the rally. During the rally, employees wore
prounion T-shirts and shouted their support for the Un-
ion. The employees also attempted to present to Man-
ager Steve Howard a petition asking the Respondent to
sign a collective-bargaining agreement with the Union.
The petition was signed by 61 of the Respondent’s ap-
proximately 76 employees including Gonzales, Gon-
zalez, Camarena, Ramirez, and Camargo. Howard re-
fused to accept the petition, claiming that he lacked the
authority to “deal” with it. Later that day, the Union sent
a copy of the petition to the Respondent’s Las Vegas
facility by facsimile. The Respondent then sent a copy
of the petition to its Irvine office where it was received
on Monday, January 24.
On January 24, the Respondent laid off employees
Gonzales, Gonzalez, and Camarena, citing a slowdown
in the Respondent’s business. On January 27, the Re-
spondent terminated employees Ramirez and Camargo
4 We also agree with the judge’s finding that the Respondent vio-
lated Sec. 8(a)(1) of the Act by interrogating employee Jose Ramirez
and by conditioning Ramirez’ reinstatement upon his renunciation of
support for the Union.
5 All dates refer to 2000 unless otherwise indicated.
341 NLRB No. 27
DAVEY ROOFING, INC. 223
for failing to sign safety warnings acknowledging safety
violations at the worksite.
In late January or early February, Vice President Pat-
rick Kay asked Ramirez if he “was with the Union” and
then told him that “if [he] took [his] signature off of the
petition . . . [Kay] could help [Ramirez] to get back [his]
job.”
B. Layoffs of Gonzales, Gonzalez, and Camarena
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the General Counsel has the burden of showing
that protected conduct was a motivating factor in the
employer’s decision. If the General Counsel meets this
burden, then the burden of persuasion shifts to the em-
ployer to prove its affirmative defense that it would have
taken the same action even if the employee had not en-
gaged in protected activity.
1. Union activity was a motivating factor in the decision
to lay off Gonzales, Gonzalez, and Camarena
The judge concluded, and we agree, that the General
Counsel met his burden of showing that the union activ-
ity of the alleged discriminatees was a motivating factor
in the Respondent’s decision to lay them off. First, as
the judge found, it is undisputed that the Respondent
knew of the union activity of Gonzales, Gonzalez, and
Camarena. All three signed the petition, received by the
Respondent, requesting that the Respondent sign a col-
lective-bargaining agreement with the Union.
Second, the judge properly relied on the Respondent’s
timing of the layoffs as evidence of unlawful motivation.
It is well settled that the timing of an employer’s action
in relation to known union activity can supply reliable
and competent evidence of unlawful motivation. Power
Equipment Co., 330 NLRB 70, 74 (1999); Abbey’s
Transportation Services, 284 NLRB 698 (1987), enfd.
837 F.2d 575 (2d Cir. 1988). Here, the timing of the
layoffs supports a finding of unlawful motivation. The
Respondent laid off Gonzales, Gonzalez, and Camarena
the next business day after the union rally on January 21,
and on the same day that its Irvine office received the
petition from the Union, which each of them had signed.
Third, the judge correctly found evidence of animus in
Vice President Kay’s unlawful interrogation of employee
Ramirez and Kay’s offering of reemployment with the
Respondent to Ramirez if he abandoned his support for
the Union. According to the credited testimony, Kay
asked Ramirez, who had been discharged a week earlier,
whether he was still “with the union.” Kay then told
Ramirez that if he would remove his signature from the
union petition Kay would help Ramirez to get his job
back. While this conversation took place after the Janu-
ary 24 layoffs, it is evident that the Respondent harbored
animus toward the recent union activity of its employees
and was striving to ensure that its employees rejected the
Union.
2. The Respondent failed to show that it would have laid
off Gonzales, Gonzalez, and Camarena for
economic reasons even in the absence of
their union activity
We also agree with the judge’s conclusion that the Re-
spondent failed to establish its affirmative defense. The
Respondent asserts that it laid off Gonzales, Gonzalez,
and Camarena because of a business slowdown. The
judge, however, found that Vice President Kay, the Re-
spondent’s witness, gave inconsistent and uncorroborated
testimony regarding the slowdown of available work,
while Celestino Gonzales credibly testified that at the
time of the layoffs, his crew had been working between 8
and 10 hours a day, 6 or 7 days a week. Further, Celes-
tino Gonzalez credibly testified that at the time of the
layoff there was enough work for a week or two and that
numerous houses were in the construction process, which
would eventually require placement of roofing materials.
The record supports these findings.
Finally, the judge observed that the Respondent failed
to offer corroborating documentation of a slowdown in
work either generally or specifically at the housing de-
velopment where Gonzales, Gonzalez, and Camarena
were assigned. The absence of such documentation is
significant here, where the only evidence proffered in
support of the business slowdown is inconsistent and
uncorroborated oral testimony. See, e.g., Reeves Rubber,
Inc., 252 NLRB 134, 143 (1980) (having advanced an
economic defense for a layoff made in suspicious cir-
cumstances, it was incumbent on employer to proffer
more than oral testimony).
In these circumstances, we agree with the judge’s con-
clusion that the Respondent failed to demonstrate by a
preponderance of the evidence that it would have laid off
Gonzales, Gonzalez, and Camarena for economic reasons
even in the absence of their union activity.
C. Discharges of Ramirez and Camargo
The judge concluded that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act when it discharged em-
ployees Ramirez and Jesus Camargo purportedly for re-
fusing to sign warnings acknowledging safety violations
at the worksite. We disagree.
The Respondent contends that the refusal of Ramirez
and Camargo to sign the warnings constituted insubordi-
nation in disregard for worksite safety. It argues that it
discharged Ramirez and Camargo for such insubordina-
tion and that it would have done so even in the absence

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
of their union activity. The judge found that the Respon-
dent’s asserted defense of insubordination failed because
the testimony of Vice President Patrick Kay and Supervi-
sor Salvador Guardado concerning the Respondent’s
decisionmaking process and its rationale for the dis-
charges was “antithetical in nature and unworthy of be-
lief.” The judge concluded that the Respondent’s de-
fense was a pretext for ridding itself of union supporters.
The record does not support the judge’s conclusion.
The Respondent’s system (SWEEP), which monitors
and enforces compliance with safety provisions, has ex-
isted since early 1999. When safety violations are found,
the violators receive warnings and are asked to sign
them. In October 1999 Camargo received and signed a
safety warning for an unsecured ladder, and Ramirez
received and signed a warning for an unsecured ladder
and hardhat violation.
On January 26, Supervisor Guardado visited several
jobsites to conduct the monthly safety sweep. There is
no dispute that Camargo and Ramirez committed safety
violations that day. Guardado found roofer Camargo
working on a rooftop with an unsecured ladder and no
hard hat. Guardado issued him a warning, which
Camargo refused to sign. That same day Guardado en-
countered Ramirez on a metal installation project with an
unsecured ladder. Guardado issued him a warning,
which Ramirez also refused to sign. In all, Guardado
issued 12 warnings that day and Camargo and Ramirez
were the only employees who refused to sign. When
Guardado informed Kay by telephone that the two em-
ployees had refused to sign, Kay determined that the re-
fusals were insubordinate, warranting discharge. Prior to
this, no employee, including Camargo and Ramirez, had
ever refused to sign a safety warning.
While the dissent makes much of the fact that Kay and
Guardado gave differing testimony concerning the par-
ticulars of the telephone conversation that resulted in the
decision to discharge, we are not persuaded that this dif-
ference supports the judge’s finding that the Respondent
did not in fact rely on the refusals to sign the safety
warnings, but used them as a pretext for retaliation
against union activity.
Concededly, the versions of Kay and Guardado are
somewhat different from each other. In essence, Kay
said that he would discharge Ramirez and Camargo if
they persisted in their insubordinate refusal to sign.
Guardado testified that Kay told him to discharge Rami-
rez and Camargo for their initial refusal to sign, i.e.,
Guardado does not mention a second chance for Ramirez
and Camargo. In our view, this difference cannot ob-
scure the fact that Ramirez and Camargo were dis-
charged for an insubordinate refusal to sign, whether it
be for a first refusal or a persistent refusal.
Nor do we find evidence of the disparate treatment of
Ramirez and Camargo, which would support a finding of
pretext. Contrary to the dissent’s assertion, there are no
other similarly situated employees against which to com-
pare the Respondent’s treatment of Ramirez and
Camargo. No other employees have ever refused to sign
safety warning notices. Nor is there evidence of disci-
pline for other conduct involving safety matters.
Our colleague says that there was disparate treatment
as between two employee-fighters (Rickie Leinenweaver
and Manuel Ramos Jr.) and the two alleged discrimina-
tees. Our colleague asserts that fighting is a safety issue,
and thus there is disparate treatment. However, even
assuming arguendo that fighting involves a safety hazard,
the essential point is that the two alleged discriminatees
were not fired for a safety violation. Rather, they were
fired for insubordinate refusals to acknowledge the safety
violations.
Further, there is no disparate treatment as between em-
ployee Hooker and the alleged discriminatees. Conced-
edly, Hooker ignored a supervisor’s instruction, and this
may have constituted insubordination. However, his
insubordination did not involve a safety matter. The in-
subordination here did involve a safety matter. Thus,
there is no disparity as between the treatment of Hooker
and the treatment of the alleged discriminatees.6
Finally, we recognize that Kay told Ramirez, after the
discharge, that he would give Ramirez his job back if he
would take his name off the union petition. However,
the fact that Kay would rescind the discharge upon that
condition does not controvert the point that the discharge
itself was for cause.
For all of these reasons, we conclude that the Respon-
dent has established that it would have discharged Rami-
rez and Camargo absent their union activities. We, there-
fore, dismiss this allegation of the complaint.

6 Chairman Battista finds, contrary to the dissent, that the record
shows that the Respondent also discharged another employee for in-
subordinate conduct. Thus, GC Exh. 10(h) is a discharge notice issued
to employee Rosa Martinez. It states that the Respondent fired Marti-
nez for insubordination when she left payroll checks out in the open
where they were subject to theft. Instructed by her supervisor to place
all paychecks under lock and key, Martinez answered that her own
methods had always worked in the past and suggested that the supervi-
sor pass the checks out herself. The discharge notice goes on to state
that this kind of behavior “is considered insubordination and is grounds
for immediate termination under the Company’s personnel policies.”
Although the judge generally discredited the Respondent’s witness,
GC Exh. 10(h) speaks for itself. Indeed, the judge acknowledged that
the Respondent discharged Martinez for insubordination. See sec.
IV,A,par. 16, and fn. 60, of the judge’s decision.

DAVEY ROOFING, INC. 225
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusion of Law 4 and renumber
the subsequent paragraphs.
ORDER
The National Labor Relations Board orders that the
Respondent, Davey Roofing, Inc., Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding their union
membership, sympathies, or activities.
(b) Conditioning its reinstatement of discharged em-
ployees upon their renunciation of their support for the
Union.
(c) Laying off employees because of their support for
the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Celestino Gonzales, Martin Gonzalez, and Ricardo
Camarena full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges they previously enjoyed.
(b) Make Celestino Gonzales, Martin Gonzalez, and
Ricardo Camarena whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs of
Celestino Gonzales, Martin Gonzalez, and Ricardo
Camarena, and within 3 days thereafter notify them in
writing that this has been done and that their unlawful
layoffs will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”7 Copies of the notice, in

7 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-
English and Spanish on forms provided by the Regional
Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent 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 January 24, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification attesting
to the steps that the Respondent has taken to comply.

MEMBER WALSH, dissenting in part.
I join the majority in concluding that the Respondent
violated Section 8(a)(1) of the Act by unlawfully interro-
gating employee Jose Ramirez and by conditioning Ra-
mirez’ reemployment on his abandonment of the Union.
I also join the majority in finding that the Respondent
laid off employees Celestino Gonzales, Martin Gonzalez,
and Ricardo Camarena in violation of Section 8(a)(3) and
(1). However, I disagree with the majority’s dismissal of
the allegation that the Respondent violated Section
8(a)(3) and (1) by discharging employees Jose Ramirez
and Jesus Camargo. The judge properly found that the
Respondent’s reasons for discharging Ramirez and
Camargo were a pretext for retaliation against their union
activity.
Background
Ramirez and Camargo participated in the union orga-
nizing campaign in the summer 1999. Together with
some 60 employees, they attended a rally on January 21,
2000,1 at the Respondent’s Las Vegas facility. Ramirez
and Camargo signed a union petition asking the Respon-
dent to sign a collective-bargaining agreement with the
Union, which the Union attempted to present to the Re-
spondent at the January 21 rally and which was received
by the Respondent on January 24.
During a routine safety sweep on January 26, Ramirez
and Camargo were cited for not securing a ladder and
Camargo was additionally cited for not wearing a hard-
hat. When Supervisor Salvador Guardado asked them to

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.”
1 All dates are in 2000 unless otherwise indicated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
sign a warning acknowledging these safety violations,
Ramirez and Camargo refused to do so. The Respondent
discharged Ramirez and Camargo allegedly for insubor-
dination by refusing to sign the warnings.
About a week after his discharge, Ramirez returned to
the Respondent’s office to get his final paycheck. Rami-
rez saw Vice President Patrick Kay who asked Ramirez
if he “was with the Union.” Kay then told Ramirez that
if he would take his name off of the petition Kay would
help Ramirez to get his job back.
The union activities of Ramirez and Camargo were a
motivating factor in the Respondent’s
decision to discharge them
The majority has found, and I agree, that the General
Counsel established under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), that the union activity of Gonzales,
Gonzalez, and Camarena was a motivating factor in the
Respondent’s decision to lay off the three employees.
For essentially the same reasons, the General Counsel
has shown that the union activity of Ramirez and
Camargo was a motivating factor in the Respondent’s
decision to discharge them. Thus, Ramirez and Camargo
participated in the union rally on January 21 and signed
the union petition asking the Respondent to sign a collec-
tive-bargaining agreement with the Union. The Respon-
dent’s receipt of the union petition, signed by Ramirez
and Camargo, establishes the Respondent’s knowledge
of their union support. The timing of the discharges of
Ramirez and Camargo, occurring only 3 days after the
Respondent received the union petition, establishes the
Respondent’s animus toward union activity. The Re-
spondent’s animus is further established by its unlawful
layoff of Gonzales, Gonzalez, and Camarena. Finally,
the Respondent’s unlawful interrogation of Ramirez and
its conditioning of Ramirez’ reemployment on his aban-
donment of the Union is additional evidence of animus
toward the union activity of its employees.
The Respondent has not shown that it would have dis-
charged Ramirez and Camargo for insubordination
in refusing to sign safety warnings even in the
absence of their union activity
The Respondent asserts that it discharged Ramirez and
Camargo for insubordination in connection with their
refusals to sign warnings acknowledging safety viola-
tions committed by them on January 26. There is no
question that Ramirez and Camargo committed the safety
violations and refused to honor Supervisor Guardado’s
request for them to sign warnings acknowledging the
violations. This is not a case, therefore, where the rea-
sons asserted for the discharge are false. The inquiry
does not end with this finding, however. An employer
cannot simply present a legitimate reason for its action
but must persuade by a preponderance of the evidence
that it would have taken the same action for this reason
even in the absence of union activity. Power Equipment
Co., 330 NLRB 70, 74 (1999); Kellwood Co., 299 NLRB
1026, 1028 (1990). Where “the evidence establishes that
the reasons given for the Respondent’s action are pretex-
tual—that is, . . . not in fact relied upon—the Respondent
fails by definition to show that it would have taken the
same action for those reasons, absent protected conduct.”
Golden State Foods Corp., 340 NLRB No. 56, slip op. at
4 (2003), citing Limestone Apparel Corp., 255 NLRB
722 (1981). The Respondent here has failed to make the
required showing.
First, the judge properly found that the differences be-
tween the testimonies of Vice President Kay and Super-
visor Guardado regarding the Respondent’s decision-
making process for discharging Ramirez and Camargo
rendered the Respondent’s defense “not worthy of be-
lief.” Kay and Guardado gave wholly different accounts
of what transpired after Ramirez and Camargo refused to
sign the warning notices. According to Kay, who spoke
to Guardado after Guardado learned that the employees
would not sign, Guardado was instructed by Kay to go
back to Ramirez and Camargo and to reassure them that
they would not be terminated if they signed the warnings.
Kay testified that he concluded that Ramirez and
Camargo should be terminated only after the employees
continued to refuse to sign the warnings the second time.
Guardado’s testimony sharply contradicted Kay’s ac-
count. Guardado testified that, upon first learning that
Ramirez and Camargo refused to sign, Kay immediately
ordered that they be terminated for their conduct. Al-
though Kay testified that Ramirez and Camargo were
terminated not only for refusing to sign the warning no-
tices, but also because the employees acted disrespect-
fully toward Guardado, Guardado denied that either Ra-
mirez or Camargo acted disrespectfully in any way to-
ward him.
Faced with such variance in testimony, the judge prop-
erly found that the Respondent’s asserted reasons for
discharging Ramirez and Camargo were “not worthy of
belief.” While the alleged discriminatees had refused to
sign the warnings of safety violations, the judge essen-
tially found that the Respondent had not in fact relied on
their refusal to do so; the Respondent had instead seized
upon the refusals as a pretext for retaliation against union
activity.
The finding of pretext is further supported by the Re-
spondent’s harsh treatment of Ramirez and Camargo.
The record shows that the Respondent has merely sus-

DAVEY ROOFING, INC. 227
pended other employees for serious acts of misconduct,
while it discharged Ramirez and Camargo for refusing to
sign a warning. As noted in General Counsel’s Exhibit
10, employees Rickie Leinenweaver and Manuel Ramos
Jr., in May 2000, engaged in fighting and abusive lan-
guage at the worksite. Each employee was suspended 5
days for their misconduct. In addition, employee David
Hooker ignored his supervisor’s instructions to report to
the designated jobsite of a key customer. Hooker’s fail-
ure to follow instructions resulted in damage to customer
relations. He was suspended for 3 days.
The majority would discount the evidence of Leinen-
weaver, Ramos, and Hooker’s lesser discipline for seri-
ous misconduct because it does not involve safety mat-
ters. This distinction does not bear scrutiny. A fight on
the worksite endangers the safety of all the employees
working at the time. It is at least as serious a matter as a
refusal to sign a safety warning. Further, while Hooker’s
insubordination in ignoring a supervisor’s instructions
did not involve a safety matter, it was serious misconduct
that damaged relations with a key customer. Yet Hooker
was simply suspended for 3 days.
As my colleagues acknowledge, the Respondent vio-
lated the Act subsequent to discharging these employees
by informing Ramirez that he could have his job back if
he took his name off a union petition. The fact that the
Respondent was willing to take this allegedly insubordi-
nate employee back, if he would only renounce an act
which evidenced his support of the Union, is further evi-
dence that the Respondent was not truly concerned with
the insubordination of these employees, but was actually
concerned about their union activities.
Finally, the Respondent’s safety policies and proce-
dure manual does not contain a requirement that employ-
ees sign safety warnings. Nor does it mention any pun-
ishment for failure to sign warnings. The absence of
such provisions belies the Respondent’s assertion that
signing safety violation warnings is of such importance
that failure to sign the warnings warrants immediate dis-
charge.
For these reasons, the Respondent failed to establish its
affirmative defense, leaving intact the General Counsel’s
showing that the Respondent discharged Ramirez and
Camargo for their union activity.

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 or protection
Choose not to engage in any of these protected
activities.

WE WILL NOT interrogate you regarding your union
membership, sympathies, or activities.
WE WILL NOT condition your reinstatement from dis-
charge upon your renunciation of support for the Union.
WE WILL NOT lay off employees because of their sup-
port for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days of the date of the Board’s Or-
der, offer Celestino Gonzales, Martin Gonzalez, and Ri-
cardo Camarena full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Celestino Gonzales, Martin Gonzalez,
and Ricardo Camarena whole for any loss of earnings
and other benefits resulting from their layoffs, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Celestino Gonzales, Martin Gonzalez, and
Ricardo Camarena, and WE WILL, within 3 days thereaf-
ter, notify them in writing that this has been done and
that the layoffs will not be used against them in any way.

DAVEY ROOFING, INC.

John Giannopoulos, Esq., for the General Counsel.
Thomas Lenz, Esq. (Atkinson, Andelson, Loya, Ruud & Romo),
of Cerritos, California, for the Respondent.
Barry S. Jellison, Esq. (Davis, Cowell & Bowe), of San Fran-
cisco, California, and Antonio Diaz, Local Organizer, of
Las Vegas, Nevada, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and amended unfair labor practice charges in this case were
filed by United Union of Roofers, Water Proofers, and Allied
Workers, Local 162, AFL–CIO (the Union) on March 21 and
May 25, 2000, respectively. After an investigation, on May 25,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
2000, the Regional Director for Region 28 of the National La-
bor Relations Board (the Board) issued a complaint, alleging
that Davey Roofing, Inc. (Respondent) engaged in, and is en-
gaging in, acts and conduct violative of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act). The Respondent
timely filed an answer, denying the alleged unfair labor prac-
tices. Pursuant to a notice of hearing, the above-described mat-
ter came to trial before me on October 23–26, 2000, in Las
Vegas, Nevada. At the trial, all parties were afforded the oppor-
tunity to examine and to cross-examine each witness, to intro-
duce all relevant documentary and other evidence, to orally
argue their legal positions, and to file posthearing briefs. Coun-
sel for the General Counsel and counsel for Respondent filed
posthearing briefs, each of which has been carefully consid-
ered. Accordingly, based on the entire record, including the
posthearing briefs and my assessment of the demeanor, while
testifying, of each of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of California Corporation, maintains a
place of business, consisting of an office and warehouse, in Las
Vegas, Nevada (Las Vegas facility), where it is engaged as a
roofing contractor in the building and construction industry,
performing primarily residential roofing work. In the normal
course and conduct of its business operations, during the 12-
month period ending March 21, 2000, Respondent derived
gross revenues in excess of $500,000 and purchased and re-
ceived at its Las Vegas facility goods and products valued in
excess of $50,000, directly from sources located outside the
State of Nevada. Respondent admits that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The General Counsel alleges that Respondent engaged in
conduct violative of Section 8(a)(1) and (3) of the Act by, on or
about January 25, 2000, laying off and refusing to recall its
employees, Celestino Gonzales, Martin Gonzalez, and Ricardo
Camarena,1 and by, on or about January 26, 2000, discharging

1 Alleged discriminatee Ricardo Camarena failed to appear and tes-
tify at the trial, and counsel for the General Counsel offered no expla-
nation for Camarena’s failure to do so and refused to move to dismiss
the complaint allegations as to him. In these circumstances and believ-
ing that Respondent’s counsel effectively had been denied the opportu-
nity to cross-examine Camarena and that, therefore, Respondent would
be denied due process, I informed the parties I would neither make
findings as to the said alleged discriminatee nor, in the event I found
merit to the complaint allegations, award him any remedy. Subsequent
to the close of the hearing, having reconsidered the issue, I clearly erred
in my ruling. Thus, in Riley Stoker Corp., 223 NLRB 1146, 1147
(1976), the Board held that “if . . . the record sustains the allegations of
unlawful discrimination against discharged employees, their testimony
is not a sine qua non for relief under the Act.” More recently, in Ka-
and refusing to reinstate its employees, Jesus Camargo and Jose
Ramirez. Further, the General Counsel alleges that Respondent
acted in violation of Section 8(a)(1) of the Act by engaging in
surveillance of its employees’ union activities, by interrogating
employees as to their activities and support for the Union, by
threatening employees with suspension and/or discharge be-
cause of their union activities, by informing employees that
their support for the Union would by futile, and by conditioning
reinstatement of employees upon their agreement to refrain
from engaging in activities in support of the Union.
Respondent denied the commission of the alleged unfair la-
bor practices and contends that alleged discriminatees Camargo
and Ramirez were terminated for insubordination and that al-
leged discriminatees Gonzales, Gonzalez, and Camarena were
laid off for economic reasons.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that Respondent is a State of Califor-
nia corporation engaged in business in the building and con-
struction industry as a roofing contractor, with its corporate
office located in Irvine, California; that Respondent conducts
its business operations throughout California and in Las Vegas,
Nevada, and surrounding areas; that 95 percent of the roofing
work performed by Respondent consists of residential tile roof-
ing work; and that, except for its commercial roofing employ-
ees in the Las Vegas, Nevada area, who are represented by the
Union, none of Respondent’s employees are represented by any
labor organizations. Tim Davey is Respondent’s president and
its majority shareholder; Brian Flaherty is its minority share-
holder and senior vice president; Patrick Kay is Respondent’s
vice president of operations; and Cheryl Daniel is its manager
of human resources. At all times material, Steve Howard was
the manager of Respondent’s Las Vegas, Nevada office and
warehouse facility and responsible for its residential roofing
operations in the northern Las Vegas area, and Salvador Guar-
dado, a field superintendent, was responsible for Respondent’s
residential roofing operations in the southern Las Vegas area.
In Las Vegas, Respondent employs no permanent commercial
roofing employees and obtains any workers, who would per-
form such work, from the Union’s hiring hall, employs one
permanent employee, who is represented by the Union and who
performs both commercial and residential roofing work, and
employs approximately 76 employees, who perform residential
roofing work. These employees are classified as operators, who
drive heavy pieces of equipment, such as petty booms or fork-
lifts, which are used to lift the roofing materials onto the roofs

jima Engineering & Construction, 331 NLRB 1604 (2000), notwith-
standing that an alleged discriminatee was ill and did not attend the
hearing, the Board found that he had been unlawfully terminated and
awarded him a remedy. While counsel for the General Counsel offered
no explanation for Camarena’s failure to testify and while I continue to
harbor due process concerns, the principle remains the same. Thus,
Camarena’s failure to appear does not preclude findings in his behalf,
and I reverse my ruling at the trial. In this regard, as Respondent’s
defense is a general economic one and not specific as to any of the
members of the Celestino Gonzales loading crew, it does not appear
that Respondent has suffered prejudice by my ruling change.

DAVEY ROOFING, INC. 229
of the residential homes on which Respondent’s employees are
working; loaders, who actually place the roofing material in
specified places on the roofs; and roofers, who actually install
the roofing materials, including paper, tile, and metal work,
onto the roofs.2
The record further establishes that the Union’s organizing
campaign amongst Respondent’s residential roofing employees
commenced during the summer 1999, with union agents visit-
ing said employees at their homes and at Respondent’s job
sites, distributing flyers to employees outside Respondent’s
office and warehouse facility, and conducting meetings with
groups of Respondent’s employees at the Union’s meeting hall
in Las Vegas. While engaging in the organizing efforts, it ap-
pears that the Union made no effort to keep its desire to repre-
sent the residential roofing employees a secret from Respon-
dent, informing the latter of its desire to enter into negotiations
for a collective-bargaining agreement, covering the residential
roofing employees, and, according to William Penrose Jr., an
International representative for the Union, actually engaging in
discussions with Respondent on specific terms of such an
agreement. Further, Respondent’s officials conceded being
aware of the Union’s ongoing organizing campaign. Thus, Kay
and Daniel both testified that they had seen copies of leaflets,
inviting Respondent’s employees to meetings with union offi-
cials. Moreover, Salvador Guardado, who testified that he be-
came aware of the Union’s organizing campaign in late 1999,
stated that union leaflets “were everywhere” and that, upon
being given one, inviting employees to a meeting the following
week at the Union’s meeting hall, by an employee, he decided
to attend in order to “see what the Union has to offer.”
In this regard, there is no dispute that Guardado did endeavor
to attend a union meeting with Respondent’s employees at the
former’s meeting hall in Las Vegas one night during the fall
1999. Placing the incident as occurring on October 27, Antonio
Diaz, the Union’s local organizer, testified that, prior to the
start of the meeting, along with approximately 20 employees,
he was standing in the parking lot in front of the Union’s office
and that Guardado, whom he recognized, approached him. “Sal
came up. He had one of the flyers that we were handing out . . .
inviting [Respondent’s employees] to a worker meeting . . . he
said he worked for [Respondent], he was an employee and he
wanted to participate in the meeting.” Diaz responded, inform-
ing Guardado that he would not permit the former to attend and
that Guardado would have to leave. Rather than replying,
Guardado just turned and walked towards his truck, which was
parked across from the front of the Union’s office, entered the
vehicle, and drove off. Guardado’s version of what occurred is
virtually identical. According to Respondent’s field superinten-
dent, on his own volition, on the night of the scheduled meet-
ing, he drove in his truck to the location of the union meeting,
parked in a parking lot 25 feet from the Union’s office, got out
of his truck, and noticed Diaz and another individual approach-
ing him. Guardado walked towards the two men, “and there Mr.
Diaz . . . [asked] me . . . what was my position [with Respon-

2 Specified roofers are designated and act as foremen over crews of
roofers, and operators have foreman responsibilities over the crews of
loaders, who work with them.
dent], and I told them I was a supervisor. Then, they told me
that the meeting wasn’t for supervisors or superintendents, that
I couldn’t go in. . . . So, I left.” Guardado, who recalled the
incident as lasting no more than 7 minutes, conceded that he
recognized one employee amongst the group of individuals
standing outside the Union’s office—alleged discriminatee,
Jesus Camargo.3
Camargo testified that, subsequent to the incident at the Un-
ion’s office, Guardado commented to him about the Union on
two separate occasions. On the first occasion, along with two
other employees, he was in Respondent’s office waiting for a
job assignment and talking about the Union. Guardado ap-
proached and said “that the Union wasn’t good and that the
benefits weren’t any good either.” According to Camargo, the
second occasion occurred the day after another union meeting
when he was at Respondent’s facility with other employees,
and they were speaking about the Union. Guardado “came up
to us . . . and he told us not to go the meetings because we
could be suspended or fired.”4 Alleged discriminatee Jose
Ramirez also recalled speaking to Guardado two or three times
about the Union. He recalled that the last of these conversa-
tions occurred on or about January 24, 2000, in Respondent’s
office, and Guardado “asked me if I supported the Union.” To
this, Ramirez replied “that I was thinking about it.”5 While he
denied warning any employees they would be suspended for
going to union meetings, Guardado admitted having one con-
versation about the Union with Camargo—telling him “as a
friend” that “maybe what the Union was offering wasn’t really
what was going to happen.”6 Further, Guardado failed to deny
what Ramirez attributed to him.
There is no dispute that, on Friday, January 21, 2000, Re-
spondent’s employees held a rally, organized and conducted by
the Union, outside of Respondent’s office and warehouse facil-
3 Camargo, who recalled the incident as occurring at the end of De-
cember, testified that, along with approximately 30 other employees of
Respondent, he was standing outside the Union’s office, prior to the
start of the scheduled meeting, when Guardado drove into the parking
lot, got out of his car, and walked over to the door of the Union’s office
where Antonio Diaz and his father were standing. “He said that he was
interested in going into the meeting because he wanted to be part of the
Union,” and “the organizers told him he couldn’t . . . because he was
. . . a supervisor.” Another alleged discriminatee, Jose Ramirez, testi-
fied that he, also, attended this union meeting, that he recalled the oc-
currence of the incident involving Guardado, and that another alleged
discriminatee, Ricardo Camarena, also attended the union meeting.
4 In his pretrial affidavit, Camargo combined each of Guardado’s al-
leged comments into one conversation at a jobsite. Also, during cross-
examination, he contradicted himself, stating that he was alone during
his alleged second conversation with Guardado.
5 During cross-examination, Ramirez changed his testimony, stating,
“He was asking me if I supported the Union, if I agreed with them.”
Ramirez recalled a similar conversation with Steve Howard “towards
the beginning of January” in his office. Howard “only asked if I was
involved with the Union,” and Ramirez responded “that I was thinking
about it.” During cross-examination, Ramirez contradicted himself,
testifying, “He was just asking me if I was going to the Union meet-
ings, and I said no.” In either case, Howard failed to appear at the hear-
ing and did not deny what was attributed to him by Ramirez.
6 I will discuss Guardado’s testimony regarding the circumstances of
this comment infra.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
ity in Las Vegas. According to Antonio Diaz, “the workers . . .
felt that they should sign a petition to turn into their employer”
and that they wanted to stage a rally in front of Respondent’s
office on the day on which they would present it to Respondent.
The petition, General Counsel’s Exhibit 4, bears the heading,
“This petition is a request by your roofers listed below that you
seriously consider and sign the residential contract with local
#162. This contract we feel is fair and would be beneficial to
our families with hospitalization and pension benefits,”7 and,
Diaz testified, was distributed amongst Respondent’s residen-
tial roofing employees during the “few” weeks prior to January
21 for signing. Diaz added that the purpose of the rally was to
present the petition to Respondent so that Tim Davey would
understand the desire of Respondent’s residential roofing em-
ployees for representation by the Union, and it was scheduled
to commence at approximately 3 p.m., the time at which em-
ployees arrived at Respondent’s facility in order to receive their
paychecks.
Alleged discriminatees Camargo, Ramirez, Celestino Gonza-
les, and Martin Gonzalez testified that, along with 50 to 60
other employees, they participated in the rally late in the after-
noon on Friday, January 21, outside of Respondent’s Las Vegas
office and warehouse facility and that they signed the above-
described petition.8 The rally lasted approximately 1 to 1-1/2
hours as the demonstrators, who wore union logo T-shirts and
shouted their support for the Union, waited for fellow employ-
ees, who had yet to obtain their paychecks, to join them in pre-
senting their petition, which was carried by Diaz, to Steve
Howard. At one point while the employees gathered, Howard
walked outside through the front door, observed the size of the
crowd, and went back inside.9 When he deemed the number of
demonstrators sufficient, with the employees behind him, Diaz
attempted to enter the facility through the front door; however,
he discovered that the doors had been locked. Then, Diaz and
the employees went around to the back of the facility in order
to enter the office through the warehouse entrance. Inside the
warehouse, they encountered Howard, and Diaz informed
Howard that he had the employees’ petition and wanted to pre-
sent it to Howard. The latter refused to accept it, claiming a
lack of authority to do so or to “deal” with Diaz.10 Thereupon,
Howard turned and walked into Respondent’s office, locking
the door behind him. Later that day, Diaz returned to the Un-

7 Diaz testified that he drafted the language, which headed the peti-
tion.
8 There are 61 signatures on the petition. Camargo, Ramirez, Gonza-
les, and Gonzalez each identified his signature on the petition. Celes-
tino Gonzales’ signature appears twice on the document. There is no
record evidence that Ricardo Camarena was present during the rally on
January 21; however, while no witness identified it, what appears to be
his signature is on the second page of the petition between the signa-
tures of Celestino Gonzales and Martin Gonzalez.
9 It is clear that Respondent’s officials in Irvine were aware of what
was occurring in Las Vegas. Thus, Patrick Kay testified that “they’d
called me and let me know that the Union was outside the Las Vegas
office having some employees sign a piece of paper.”
10 Patrick Kay denied that Howard was acting under instructions
from management in Irvine—he was “acting on his own.” According to
Kay, he did not learn until the next day that Howard had refused to
accept the employees’ petition.
ion’s office and sent a copy of the residential roofing employ-
ees’ petition to Respondent’s Las Vegas facility by facsimile.
Finally, Cheryl Daniel admitted that the Las Vegas office sent a
copy of the petition to Respondent’s Irvine office via an over-
night delivery service where it was received on Monday morn-
ing and that additional copies were sent directly to Patrick Kay
and Tim Davey, and Patrick Kay admitted reviewing the peti-
tion, giving a copy to Tim Davey, and discussing it with the
Las Vegas office superintendents.11
On the following Monday, January 24, Respondent informed
alleged discriminatees Celestino Gonzales, an operator for Re-
spondent,12 Martin Gonzalez, a loader, and Ricardo Camarena,
a loader, that they were being laid off. The two loaders worked
with Celestino Gonzales, forming a loading crew,13 for which
he was the crew leader,14 and, at the time of their layoffs, the
11 There is no dispute, and Patrick Kay testified, that “a week . . . af-
ter reviewing [the] petition . . . [Respondent’s] management team . . .
put together a Power Point—we felt it was a good time to communicate
to all our employees” at the Las Vegas office facility. As to what
prompted this meeting, during cross-examination, Kay said that, upon
examining the petition, he discussed it with Tim Davey and other com-
pany officers, and “we . . . knew . . . it was time to talk to our employ-
ees.” Asked specifically if the meeting was in direct response to the
rally and petition, Kay retreated, stating “I’m not sure whether it was
the petition or some of the flyers.” Having listened to the entirety of
Kay’s testimony, Cheryl Daniel specifically denied that the rally and
petition precipitated the meeting with the Las Vegas roofing employ-
ees, asserting “it didn’t have anything to do with the petition” and the
timing was pure “happenstance.” Rather, “we were aware of flyers that
the Union was distributing to our employees, and that had been ongoing
for a while, and then I was aware of some confusion from our field
employees as to how they were being paid, and so we decided that it
was a good time to meet with them and discuss our variable piece rate.”
She added that preparation of the slide presentation had commenced
prior to the employees’ rally. In any event, on either the last Friday in
January—January 28—or the first Friday in February, members of
Respondent’s management team, including Davey, Kay, Daniel, the
vice president for finance, Howard, and Guardado, held a meeting with
the Las Vegas residential roofing employees at its office and warehouse
facility, with Davey conducting the meeting. He projected transparent
slides, in Spanish and English, onto video screens and “basically talked
about the different . . . houses, how houses that take longer pay more
money than houses that are . . . easier, discussed the pay, the piece rate
of all the different types of tile.” The slide demonstration ended with
the printed words, “We never lie to you. We will always tell you the
truth.” Finally, Daniel conceded that the purpose of the slide presenta-
tion was to demonstrate that their current compensation system was
better than offered by the Union.
12 During direct examination, Gonzales said that he was employed
by Respondent as a driver, operating a sky track machine. During
cross-examination, he gave his job title as operator.
13 Gonzales testified that as an operator the machine he operated was
the “sky track,” which would hoist pallets of tile to the roofs of the
houses. He further testified that he would obtain tiles from trailers and
take the material to the homes on which he and his crew were in-
structed to work. While he would unload the material, one loader would
clean the area and the other would climb up to the roof “and work the
house,” piling tiles at preestablished intervals.
14 Gonzales denied having any responsibility for the two loaders on
his crew “because they also know their jobs.” While adding that his
responsibility went only to the job itself, he conceded that “I was in
charge of [telling the other employees the location of their work, the

DAVEY ROOFING, INC. 231
crew had been performing loading work on Respondent’s Red
Rock jobsite, a large residential housing development. Celes-
tino Gonzales testified that his crew worked at the jobsite on
the Saturday and the Sunday following the rally and were
working15 there on Monday afternoon when Steve Howard
approached him at approximately 3 p.m. that day. According to
Gonzales, Howard “told me to finish the job we were doing
there and to take note of everything, the hours that we had
worked . . . and to take it to the office so that we could be paid.
Then I asked him why, and he told me that the company was
only giving him a house per day, that the job was slowing down
. . . . He said the group was laid off.”16 Gonzales doubted
Howard was telling him the truth as “there were more houses
there where they were laying the papers. There was a lot of
work,” and asked Howard “why” they were being laid off if his
crew was “working well”; Howard reiterated “that the job was
going slow.” As to this, Gonzales testified that, prior to his
layoff, no one had mentioned to him a possible slow down in
their work and his crew had been working “six or seven days
per week” and between 8 and 10 hours per day. Martin Gon-
zalez testified that, on the day of his layoff, he observed Steve
Howard speaking to his uncle, Celestino Gonzales. Celestino
then informed Camarena and him that the three of them were
being laid off. According to Gonzalez, a short while later, the
three of them went to Respondent’s office in order to turn in
their timesheets. There, they spoke to Steve Howard in the rear
of the office. “He said that we weren’t fired, that work was
slow, that we were laid off, and that he would . . . recall us
when they had more work.” During his cross-examination,
Celestino Gonzales was also able to recall this conversation,
stating that “[Howard] said the only reason [we were] being
laid off was because they did not have enough work. He said
that at Red Rock . . . they were only going to get one house per
day. I told him that [there] was a lot of work. He said that he
had to use the other long-term employees to do the work.”
Martin Gonzalez recalled that Celestino “did ask” if the layoffs
had anything to do with the Union and that “Howard said that
he had nothing to do with the Union and he didn’t want to do
anything with them and only that the job had slowed down.” As
to the work situation at the time of his layoff, Gonzalez said
that “there were six houses left [ready for roofing materials]”;
that it would have taken “more or less a week or maybe two
weeks” to complete his uncle’s crew’s work on the jobsite; and
that many more homes were under construction at the Red
Rock project.
Respondent’s defense to the layoffs of alleged discrimina-
tees, Celestino Gonzales, Martin Gonzalez, and Ricardo Cama-
rena, is an economic based one—that said layoffs were moti-
vated by a business slowdown and a consequent need for Re-
spondent to reduce its work force. At the outset, Patrick Kay

tile to be used, and the color]” and that he maintained the time records
for each person on his crew. As will be discussed infra, Respondent
argues that Gonzales was a supervisor within the meaning of Sec. 2(11)
of the Act.
15 Gonzales’ crew would be working on “two or three” houses at any
particular time.
16 Asked if doing just one house per day would have kept his crew
busy, Gonzales conceded, “One house, no, it’s not sufficient.”
conceded that Steve Howard made the decision to lay off the
three alleged discriminatees without any input from him. Not-
withstanding Kay’s admission, Cheryl Daniel, who testified
subsequent to Kay and who was present in the hearing room
during Kay’s testimony, insisted that Kay “brought to my atten-
tion that [the alleged discriminatees] were going to be laid off
. . . the day before they were laid off,”17 and “he told me that he
was going to be laying off these individuals.”18 Assuming Kay
was truthful regarding Steve Howard’s role in the layoffs, the
latter failed to appear and testify at the hearing.19 Thus, other
than the testimony of Celestino Gonzales and Martin Gonzalez
regarding Howard’s rationale for their layoffs, there is no re-
cord evidence as to the necessity for a layoff or as to the selec-
tion of the three alleged discriminatees for layoff. Neverthe-
less, Kay sought to explain the layoffs of the Celestino Gonza-
les crew as resulting from a decline in available work. In this
regard, during direct examination by Respondent’s counsel,
asked if, during 2000, there had been a change in the availabil-
ity of work for loaders, Kay initially replied, “No. It was
steady.” Then, asked if he recalled laying off a loading crew,
Kay answered, “I’m not sure of the month, but it was a slow
time. It was when we slowed down.”20 Asked by me to explain
his inconsistent answers, Kay averred he “misunderstood” what
he had been asked and maintained that “there’s been no change
since the date of that . . . layoff until today of productivity as far
as us doing more work, volume of work since then.”21 But,
during cross-examination, when asked if there are slow months
in Nevada, Kay seemingly affirmed his original answer, reply-
ing “Nevada is very steady. [We’re] very fortunate.” Immedi-
ately thereafter, he further confused matters, stating “it depends
on how much work is awarded us.”22 Moreover, while there is
no record evidence as to why Celestino Gonzales, Martin Gon-
zalez, and Ricardo Camarena were chosen for layoff, Kay gen-
erally testified that Respondent relies upon “seniority, produc-
tivity” as factors in selecting individuals for layoff. Daniel con-
tradicted Kay as to the specific factors and as to which factor
has priority, stating “assuming that employees have the same
level of skill and are equally productive, then seniority is the
determining factor as to who will be laid off.” Also, she as-
serted that she examined Respondent’s employment records
17 Presumably, this was Sunday, January 23.
18 Refreshed with Kay’s testimony, Daniel conceded that “maybe my
assumption that he made that decision is incorrect. I don’t know.”
19 Counsel for Respondent stated that he was unable to locate How-
ard, who is no longer employed by Respondent.
20 Asked if any operators or loaders were hired in Las Vegas after
the layoffs of the three alleged discriminatees, Cheryl Daniel replied,
“To the best of my knowledge, we’re still retaining three crews, three
loading crews, and they’re the same three loading crews with the same
operators that were employed at the same time that Celestino and his
crew were employed.”
21 Kay was contradicted by Daniel on this point. She testified, “It
was my understanding that . . .work had slowed down considerably . . .
for the month of February, and so one of the loading crews that had
been working on another job that was wrapping up was moved to Red
Rock.” She added, “This was indicated to me by Pat Kay.”
22 Daniel testified that, in a conversation with her at the time of the
layoffs, Kay “.had indicated that [work] had slowed down.” Kay failed
to corroborate this hearsay testimony.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
and “verified” that the members of the three other loading
crews, which Respondent employed in January 2000,23 all had
seniority over Gonzales, Gonzalez, and Camarena; however,
Respondent offered no corroborative records.
Likewise, Respondent failed to offer any documentary evi-
dence, demonstrative of a decline in its Las Vegas area business
operations, corroborating Patrick Kay’s testimony that the lay-
offs of the three alleged discriminatees occurred during a slow
down in its Las Vegas area business.24 Nevertheless, there is
record evidence regarding Respondent’s hiring and use of em-
ployees during the period immediately preceding and subse-
quent to the layoffs of Gonzales, Gonzalez, and Camarena.
Thus, examination of General Counsel’s Exhibit 12 discloses
that, during the period December 1999 through September
2000, Respondent continued to hire workers, engaging no less
than 74 residential roofing employees on either a temporary or

23 According to Daniel, the operators for these three loading crews
were Antonio Martir, Rene Rivas, and Reas Hernandez. Analysis of
GC Exh. 4, the January 21 petition, reveals that the signature of none of
them appears on the document.
24 Cheryl Daniel testified that, during her preparation for the instant
trial, she attempted to “verify” that the three layoffs had occurred dur-
ing a period of a slow down in work by asking Respondent’s comptrol-
ler to provide her with “labor costs for the months of October to cur-
rent.” She was about to testify as to her findings when I informed her I
was not interested in what she did for trial preparation unless she had
been involved in the decision to lay off the alleged discriminatees.
Daniel replied, “I was not involved in the decision.” In his posthearing
brief, counsel for Respondent discussed the content of the “data,”
which Daniel asserted she reviewed, and, in fns. 26 and 27 of the docu-
ment, counsel contends that he offered the documents into the record
and that I “declined to accept” the data and argues that I ruled inconsis-
tently inasmuch as I received GC Exh. 15, a summary of, presumably,
voluminous material, which counsel for the General Counsel had sub-
poenaed prior to the trial. Finally, at fn. 30 of his posthearing brief,
counsel requests that I reopen the record “to allow for further examina-
tion of [Respondent’s] economic defenses and evidence in support of
them.”
In these regards, the salient fact is that counsel for Respondent never
offered the “labor costs” material, which Daniel asserted she reviewed,
as a trial exhibit, and, of course, I never rejected the offer of such an
exhibit. Thus, his contentions that I did so and that I acted inconsis-
tently in receiving GC Exh. 15 make no sense and are without merit.
Moreover, noting that, while Daniel asserted, prior to the layoffs of the
Celestino Gonzales crew, she examined Respondent’s seniority records
to confirm that Gonzales was Respondent’s least senior operator, coun-
sel for Respondent failed to offer any corroborating documents, one
may reasonably doubt his intent to offer any “labor costs” material. In
these circumstances, counsel had no basis for citing to Respondent’s
“labor costs” records in his post-hearing brief, and I have not, and shall
not, consider any such citations. Next, I can only admire counsel’s
chutzpah in suggesting that the record “should” be reopened for me to
receive evidence, which, evidently, he neglected to offer during the
trial. It is not the function of an administrative law judge to correct the
mistakes of counsel during a trial. Finally, while his citation in fn. 30 to
a decision, in which the Board concluded that an administrative law
judge erred in rejecting an employer’s exhibit at trial, is correct, as
noted above, Respondent’s counsel never offered and I never rejected a
“labor costs” exhibit. Therefore, the cited decision is inapplicable
herein.
full-time basis.25 Examination of Respondent’s Exhibit 17
discloses that, subsequent to the layoffs of the Celestino Gonza-
les crew, while no operator was hired to replace Gonzales,26
three loaders were hired—Edilfrido Rivas on June 15, 2000,
Mariano Ortiz on July 26, 2000, and German Martin on August
21.27 While it does not distinguish between work done before
and after the layoffs of the alleged discriminatees, General
Counsel’s Exhibit 15 discloses that, during the period October
1999 through the date of the trial, approximately 40 roofing
employees, other than individuals, who are classified as opera-
tors or loaders, performed some loading work and were com-
pensated for the work. Finally, with regard to the Red Rock
housing development project, the jobsite from which the Celes-
tino Gonzales crew was laid off, Gonzales testified that he re-
turned there on two occasions after his layoff—“eight days
afterwards and 15 days afterwards”—and that, on each occa-
sion, he observed a loading crew performing work. As to how
this crew came to be working on the Red Rock project, Gonza-
les testified, “the company took another group over there to
work” from another jobsite.
With regard to alleged discriminatees, Jesus Camargo, a
roofer, and Jose Ramirez, a roofer, analysis of the record dis-
closes that each was terminated by Respondent on or about
January 27, 2000, the Thursday following the January 21 rally
and attempted presentation of the employees’ petition to Re-
spondent. With regard to their terminations, at the outset, there
is no dispute that Respondent regularly conducts monthly28
safety sweeps.29 During these so-called sweeps, according to
Patrick Kay, Respondent’s field superintendents and supervi-
sors “visit job sites and communicate to employees the need to
be safe, teach them . . . how to be safe at all times. We pass out
recognitions and violations. If the employees are safe, we re-
ward them. If they’re not, we write them up for the violations.”
For the latter employees, “we let them know how serious it is,
not only for themselves but for the people around them.” Spe-
cifically, according to Guardado, the superintendents concen-
trate upon whether “all the employees use their hard hats, that
25 Of the individuals hired between December 1, 1999, and June 30,
2000, 16 remained employed as of September 26. The remainder were
hired for periods ranging from a week to 6 months.
26 Noting that Gonzales called himself a driver, Counsel for the Gen-
eral Counsel notes that, in GC Exh. 15, another employee, Martin
Alaniz, who was hired in 2000, is likewise described as a driver. How-
ever, contrary to counsel, the exhibit has Alaniz being employed on
August 5, 1999, and there is no record evidence that he headed a load-
ing crew.
27 Daniel testified that each new loader was hired to replace a loader
on one of the three remaining loading crews. There is no dispute that
neither Martin Gonzalez nor Ricardo Camarena was offered recall
when a loader position became available.
28 Due to the holidays, none were conducted in November and De-
cember 1999.
29 There can be no question that safety is of extreme importance to
Respondent. Thus, upon being hired, Respondent’s roofing employees,
who obviously work at significant heights, receive a detailed 16-page
booklet, explaining the company’s safety policies and procedures, and
regular meetings are conducted by foremen. Included in the booklet is a
disciplinary procedure for violations of any of the specified policies up
to, and including, termination.

DAVEY ROOFING, INC. 233
they use the clamps on the ladders and that they have the guard
on their saw.” He added that, if he finds such a violation, “I
write [it] down . . . and give it to the roofer, and . . . say ‘sign
it.’ And we have to hand it in to the office, and they are the
ones that decide if he’s going to be [disciplined].”
Alleged discriminatee Camargo testified that, “around a
week” after the rally, Guardado arrived at the Silverado Terrace
jobsite, at which he was working, conducted a safety check, and
gave him a safety warning, telling Camargo he “didn’t have the
ladder tied down.” Camargo, who admitted having received a
prior safety warning shortly after being hired, objected to the
validity of the warning notice30 and, after Guardado handed him
the warning, refused to sign it, explaining to the superintendent
“he didn’t feel that it was fair what [Guardado] was doing.”
Camargo then “asked [Guardado] . . . if I didn’t sign the warning,
what would happen to me . . . . He said nothing would happen to
me, that it was only going to be . . . put in my file.” According to
Camargo, he was terminated the next day. He was working when
he received an instruction to report to Respondent’s office and
warehouse facility in order to speak to Guardado and Howard.
He did so, met Guardado, and they went into Howard’s office.
The latter spoke, with Guardado translating for Camargo, saying
“that I was terminated . . . fired because I didn’t sign the warn-
ing.” Camargo said he hadn’t signed because the warning was in
English; Howard said “that he couldn’t do anything, that I was
fired.”31 Alleged discriminatee Ramirez, who, during 1999,
sometimes worked as an ordinary roofer and sometimes as a
working foreman for Respondent in charge of a roofing crew,32
testified that, two days before the rally outside of Respondent’s
Las Vegas office and warehouse facility, he was working with
only a helper on a jobsite when Guardado approached and gave
safety warning notices to his helper and to him for not having
their ladder tied down.33 Ramirez protested34 and, when Guar-
dado handed the warning to him, refused to sign it, explaining
“that I did have it tied down, but some other people . . . moved
it, and they didn’t tie it down” and that “it was my second
warning in a month.” “A few minutes” after Guardado said
nothing would happen, Ramirez changed his mind and offered
to sign the warning notice, but the former would not permit him
to do so. Ramirez further testified that, on the Tuesday after the
rally, he arrived at Respondent’s office and warehouse facility

30 The General Counsel does not contest the validity of the warning.
The safety warning notice contains a check next to the line, stating
“Failure to utilize personal pro-active equipment (safety glasses, hard
hat, or other).” Camargo conceded not wearing his hardhat.
31 The alleged discriminatee knew of no other employees terminated
for refusing to sign a safety warning notice.
32 Asked how often he worked as a foreman in charge of a roofing
crew, Ramirez replied, “It would depend because if there was a job,
then I would be foreman, but, if not, I would just work by myself.” The
record discloses, however, that Ramirez never actually worked by
himself but, rather, that he always worked with a helper “because they
didn’t let us work by ourselves. It was company policy.” Asked by me
if he was responsible for the helper in the same way he was responsible
for a crew, Ramirez admitted, “in the job that we would do between
both of us, yes.”
33 The safety warning notice is dated January 26, 2000.
34 The General Counsel does not contest the validity of the warning
notice.
in order to be given a work assignment and spoke to Steve
Howard. “He showed me the paper, and he . . . asked me why I
hadn’t signed and if I knew what was going to happen, and I
said no, and he said, ‘I’m sorry, but you’re fired.”’35
Salvador Guardado testified that the two alleged discrimina-
tees both refused to sign their safety warning notices on the
same day but on different jobsites. With regard to Camargo,
Guardado testified that “he had received a warning before. This
had been his second warning, and the violation was because his
ladder wasn’t tied down and he didn’t have a hard hat.” Al-
though his coworker did sign a similar safety warning,
Camargo refused to sign his warning and became upset, saying
“that the company . . . had become more difficult since the
Union had been putting pressure on us . . . I started to calm him
down, and after I calmed him down, we sat . . . and I started
telling him, ‘First of all, you have to learn to . . . do your job
well’ . . . I told him ‘First of all, you have to be a roofer or a
journeyman and when you do that, then you can start telling me
about the Union. This has nothing to do with the Union.”’
Guardado stated that the foregoing was the only conversation,
which he had with Camargo about the Union, and specifically
denied telling him it would be futile for him to support the Un-
ion. However, when reminded that he had previously admitted
telling an employee whatever the Union offered probably
would not happen, Guardado recalled that he said those words
to Camargo after the latter became “relaxed” during their
above-described conversation and that he said it “as a friend.”
As to Jose Ramirez, Guardado said he had been given a prior
safety warning and should have known not to do what he did
“because he was a foreman.” Labeling Ramirez’ testimony “not
true,” Guardado denied that the alleged discriminatee eventu-
ally offered to sign his safety warning notice. He added that
Camargo and Ramirez are the only employees, who have ever
refused to sign safety warning notices and that, on that same
day, January 26, he gave safety warnings to 10 other roofing
employees, each of whom signed his warning. Answering a
leading question, Guardado opined that the alleged discrimina-
tees refusals to sign their safety warnings indicated to him that
they were unconcerned about safety, and at the same time they
acted contrary to what the safety policies of the company are.”
Asked if he informed Steve Howard about the conduct of
Camargo and Ramirez, Guardado testified that he did so the
next morning. He was bringing the safety warning notices to
Howard’s office in order to show them to Howard, and, upon
35 Ramirez testified that, a week later, he returned to Respondent’s
facility in order to obtain his final paycheck. There, he spoke to Patrick
Kay, who was with Howard and another individual and had the final
check. Kay “told me that if I took my signature off of the petition . . .
he could help me to get back my job . . . I told him that if I had the
opportunity . . . I would return . . . he answered a bit mad, saying that
. . . he didn’t want anybody from the Union bothering the employees
there, that if I wanted to be Union . . . I could but not to bother any of
his employees.” During cross-examination, Ramirez recalled that Kay
began the conversation, asking “me if I was with the Union, and I said
yes.” While unable to recall any conversations with Ramirez, Kay
generally denied ever asking employees if they supported the Union or
offering employees the opportunity to return if they opposed the Union
or removed their signature from the petition.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
entering the latter’s office, he heard Howard speaking on the
telephone to Patrick Kay. “Steve asked me how many viola-
tions I had given, and I told him how many I had given. Then,
Steve told Pat Kay, and [Kay] told him to put on the speaker
phone . . . I told [Kay] that I had given out 12 violations and, of
the 12, two of them had refused to sign, and Pat Kay said that’s
insubordination. He said that the employees who are insubordi-
nate and don’t want to sign the violations should be terminated.
So he told me to call them.”36 Thereupon, Guardado spoke to
Ramirez and asked him to return to the office and asked
Camargo’s job superintendent to have him return to the office.
According to Guardado, he was present when Howard spoke to
each alleged discriminatee, saying he was letting him go be-
cause, by refusing to sign his safety warning notice, he had
engaged in “insubordination.”
Patrick Kay’s testimony reveals a different version of events.
According to him, one afternoon in January, he was in his of-
fice in Irvine, California, when he received a telephone call on
his cellular phone from Sal Guardado regarding a safety sweep
that day. “He called me regarding employees refusing to sign
the violations.” Guardado said that “a few” employees refused
to sign, and “he named the employees at that time.” Also, “I
recall him saying . . . others had signed violations, but . . . they
refused to sign the safety violations and that was their second
violation.”37 Kay testified, “I told Sal to talk to them and let
them know that they’re not going to lose their jobs. It’s just a
part of us educating them a little further on their . . . safety
practices . . . and that it is company policies to acknowledge
these violations.” Then, according to Kay, “later in the eve-
ning,” while at the office, he again received a telephone call
from Guardado on his cellular telephone. Guardado said “that
they refused to sign . . . the document and basically were insub-
ordinate . . . Sal had mentioned to me how disrespectful they
were and they refused to sign [the violation notice . . . and . . . I
told Sal that they’re insubordinate and if they don’t sign . . . he
needs to let them go.”38 Denying that the roofing employees’
petition entered his mind, Kay said his concern was that “two
employees . . . were basically not going to follow our safety
policies procedure and being disrespectful to a superintendent.”
During cross-examination, asked how the employees were dis-
respectful, Kay stated, “just the way that they came across to
Sal the second time, when Sal went and asked them . . . about
signing it” and that he relied entirely upon Guardado’s version
of events in concluding that the employees had been insubordi-
nate but could not recall what the employees had said.39 Fur-
ther, asked what he considered the insubordination to have
been, Kay said “both” the refusals to sign and what they said to
Guardado—“It was . . . the lack of respect for a supervisor.”
Also, Kay conceded that there is no policy or practice in place
and that employees are just expected to sign safety warning

36 Asked what Kay believed was the insubordination, Guardado re-
plied, the “refusal to sign.”
37 According to Kay, he recognized the names but could not picture
them, and was unable to recall the names while testifying.
38 Kay testified that Guardado placed his telephone calls to him on
his own cellular telephone, which he carries with him to jobsites.
39 Kay conceded that what the alleged discriminatees said must have
been quite serious.
notices. Finally, with regard to Kay’s testimony, Guardado
specifically denied the former’s version of the events leading to
the discharges of Camargo and Ramirez—“The only time I
spoke to him, it was on the next day, on the speaker”—and,
contradicting Kay, not only stated that it was Kay who first
characterized the conduct of the alleged discriminatees as in-
subordination but also averred he “didn’t even know that was
called insubordination.” Further, while stating that each argued
with him regarding the necessity for a safety warning, Guar-
dado conceded that neither alleged discriminatee said anything
of a personal nature to him
Although not involved in the decisions to terminate Camargo
and Ramirez, Cheryl Daniel defended Respondent’s actions on
grounds that “safety is so important at Davey Roofing” and
“failing to acknowledge safety rules by not signing the docu-
ment puts employees and our company at risk.” In this regard,
however, Respondent’s safety policies and procedures manual
neither contains a requirement that employees sign safety warn-
ing notices nor sets forth a punishment for their failure to do so.
Further, General Counsel’s Exhibit 10 consists of several ex-
amples of Respondent’s implementation of its progressive dis-
ciplinary policy. Daniel pointed out that two such disciplinary
actions involved termination. The first concerned an employee,
Rosa Martinez, who, after paychecks had been stolen the previ-
ous pay period and after being instructed by her supervisor to
keep paychecks “under lock and key” when away from her
desk, replied “that her method had always worked in the past”
and asked her supervisor “if she would like to pass out the
checks herself.” According to Daniel, “Rosa Martinez was
terminated for insubordination,” and she acted “in a defiant
manner.” Daniel added that both her negligence and her attitude
were factors in Martinez’ termination. Daniel also pointed to
another individual, Jose Rodriguez, who had been discharged
by Respondent—“He was terminated because he tested positive
on a random drug screen.” However, General Counsel’s Exhibit
10 also contains examples of employees, who were disciplined
harshly but not terminated for what appears to be serious acts of
misconduct. Thus, an employee who ignored “specific instruc-
tions from a supervisor, which conduct resulted in damage to
relations with a customer, was suspended but not terminated; an
employee who “used abusive language” while communicating
with fellow employees and, subsequently engaged in “fighting”
with fellow employees was suspended but not terminated; and
an employee who committed “gross misconduct” by “misuse of
material purchasing and shipping privileges and solicitation of
employees and customers . . . for interests other than those of
[Respondent]” was suspended but not terminated. Daniel did
agree that ignoring a supervisor’s direct order constituted in-
subordination.
Next, Respondent argues that, inasmuch as each was a su-
pervisor within the meaning of Section 2(11) of the Act, the
discharge of alleged discriminatee, Jose Ramirez, and the layoff
of Celestino Gonzales were not unlawful. Initially, there is no
dispute that Ramirez sometimes worked as a working foreman
for Respondent and in charge of a roofing crew40 or that Gon-
40 Whether Ramirez was acting as a working foreman at the time of
his discharge is not, at all, clear. Thus, he testified, without contradic-

DAVEY ROOFING, INC. 235
zales was an operator for Respondent and in charge of a loading
crew.
General Counsel’s Exhibits 8(a) and (b) set forth the respon-
sibilities of a foreman for Respondent, dividing them into five
distinct areas—safety, labor, material, equipment, and quality,
and Patrick Kay testified that the documents fairly and accu-
rately reflect the duties and responsibilities of the foreman posi-
tion. With regard to safety, a foreman schedules and holds
safety meetings each week, enforces all of Respondent’s safety
policies and procedures, informs superintendents of unsafe
conditions, and reports all safety-related incidents. Regarding
labor, a foreman is responsible for checking with the builder’s
superintendent each morning, the daily performance of the
employees on his crew, informing a superintendent if he re-
quires additional personnel to perform the required work, en-
suring that each member of his crew is qualified to perform all
required work and is producing work which meets Respon-
dent’s standards, completing evaluations of new employees,
ensuring the employees on his crew work 40 hours per week,
five days a week, turning in accurate pay sheets for the em-
ployees on his crew, and ensuring that each employee’s weekly
timekeeping record is accurately completed by the employee
and initialed by the foreman. As to material, the foreman is
responsible for ensuring that his crew has enough material, that
the material is not being abused, that the material is not defec-
tive, and that only material, which should be on the ground, is
properly there. Next, the foreman is responsible for ensuring
that his crew has the proper equipment and that such is operat-
ing properly. Finally, the foreman is responsible for ensuring
that all work is of the highest quality, meets Respondent’s aes-
thetic expectations, and conforms with Respondent’s policies
and procedures.
Patrick Kay, who admitted that General Counsel’s Exhibits
8(a) and (b) fairly and accurately reflected the duties and re-
sponsibilities of a foreman for Respondent and who claimed to
be familiar with alleged discriminatee Ramirez and “I’d recog-
nize him if I saw his face,” testified that Ramirez’ job func-
tion41 was “to supervise the employees on the job site that he
[[was] managing” and that his job involved “time keeping,
safety, keeping the job on track as far as production schedule.”
With regard to hiring, according to Kay, Ramirez had “access”
to other roofers, “and . . . numerous times they bring in em-
ployees.”42 Further, while Kay stated Ramirez had authority to
grant time off to employees on his crew, he would have done so
“through communicating with the supervisor.” Kay then testi-
fied he is also familiar with Celestino Gonzales, also believing

tion, that, during the last week of January 2000, he was working only
with a helper and was not in charge of a roofing crew. While Ramirez
conceded that his responsibility for his helper was identical to when-
ever he was in charge of a crew, there is no record evidence as to the
extent, if any, of his supervisorial authority over his helper.
41 At no time did Respondent refute Ramirez’ contention that “some-
times I would work by myself” and “sometimes I would be in charge of
a group or a team.”
42 Apparently, Respondent maintained an employee referral bonus
program, encouraging new hires to refer other qualified candidates for
hire. Kay was not aware of any employees, whom Ramirez may have
referred to Respondent for hire.
him to be a foreman. Kay stated that he is familiar with Gonza-
les’ job duties as they were the same as those of Ramirez, and
“our foreman’s job duties don’t switch from job to job. Our
foreman’s job duties go straight across the board.”
Salvador Guardado generally testified that a roofer foreman
“fills out the time sheets. He takes material to the houses . . . .
He has . . . to deal with the safety of the crew. And also the
communication between him and the superintendent . . . be-
cause that way the superintendent can get in touch with him as
to work.”43 Specifically regarding Ramirez, as to hiring, he
could not hire but he could recommend, “and he did it like
many others.” Guardado recalled that, since he became a super-
intendent, Ramirez recommended “around eight to ten indi-
viduals,” including his brother, his cousin, and Ramon Medina,
each of whom he hired based on Ramirez’ word that they
needed work “because they had already worked with our com-
pany.” As to others, whom Ramirez recommended, “we would
have interviewed them to see how much they knew and, de-
pending on what they know, we would have given them the
job.” As to transferring personnel, “whenever a foreman has too
many workers, he tells the superintendent . . . and they’re trans-
ferred to another job.” It is the superintendent who decides the
location and the new crew. While Ramirez had no authority to
suspend an employee, who paid no attention to instructions, he
had authority to send the employee to the office; however,
Guardado could think of no instances when Ramirez sent em-
ployees to the office for discipline, and, if an employee has
been sent to the office, “they ask him questions.” Ramirez pos-
sessed no authority to lay off employees, to recall employees,
to discharge employees, to recommend the discharge of em-
ployees, to promote employees, or to reward employees.44
However, according to Guardado, a roofer foreman, such as
Ramirez, has authority to train another employee to perform the
foreman’s job duties and, then, to recommend the employee’s
promotion.
Thereupon, a superintendent will wait until a tract becomes
available to determine “if he can do the job as a foreman.”
Guardado testified that he takes the foreman’s word that the
employee is ready for promotion; that Ramirez recommended
the promotion of his brother; and that the latter was promoted
to foreman.45 Regarding the assigning of work, Guardado con-
43 Apparently, roofer foremen carry radio telephones for communi-
cation purposes.
44 Guardado testified that roofer foremen were able to recommend
awards but could not think of anything Ramirez did in this regard.
45 Counsel for the General Counsel asserted that I “improperly de-
nied” his request to voir dire question Guardado as to whether he was
testifying to his personal knowledge regarding the promotion of Rami-
rez’ brother. While such questioning is, of course, proper, a judge,
including an administrative law judge, has discretion as to whether such
will be permitted. Here, counsel for the General Counsel’s request
came after the witness answered that Ramirez’ brother had been pro-
moted, and, in denying his request, I informed counsel that he had the
right to go into any aspect of Guardado’s testimony, including his per-
sonal knowledge of the events about which he testified, during cross-
examination. During cross-examination, counsel for the General Coun-
sel asked Guardado just one question—did he promote Ramirez’
brother. The witness answered, “I don’t think so,” and counsel obvi-
ously believed he had established his point regarding Guardado’s per-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
ceded that a roofing crew’s work is repetitive on a day-to-day
basis and that Ramirez and other foremen merely instruct their
crews upon which house they are supposed to be working.
However, a foreman may use his discretion in deciding which
employees should work on particular houses.46 Moreover,
Ramirez and other roofer foremen are authorized to permit
employees to leave work early “because you work piece work,”
and workers don’t call Respondent if they will be absent due to
illness “since they’re paid by the piece, if the house isn’t fin-
ished, it could sit there for two or three days, and they’re not
going to be paid.” Finally, with regard to pay for foremen, in
addition to their normal wages, Respondent’s foremen receive a
weekly “job end” bonus. While the amount is unclear,47 Kay
estimated it ranged between $65 and $100 per week.
The record is not clear as to how often Jose Ramirez worked
as a roofer foreman for Respondent. According to the alleged
discriminatee, since 1992, he “sometimes” worked as a fore-
man; however, when asked by me to specify, he first replied
that he did so “only in two” jobs but later said whether he
would work as a foreman “would depend” upon the size of the
job.48 Testifying with regard to his supervisorial authority as a
foreman during direct examination,49 Ramirez, who admitted
being responsible for safety on jobsites, denied being author-
ized to hire, fire, or to recommend such, to transfer workers, to
suspend or send workers home early, to grant time off, or to
promote. During cross-examination, he stated that Steve How-
ard spoke to him in 1992 about his foreman responsibilities,
explaining “that I had to take the material, that I had to give the
hours of the people that were working.” and that he had to tell
the workers on his crew what jobs to do “after Steve ordered
me” to do so. Asked if he could decide which employees
would do the assigned jobs, Ramirez said, “I didn’t have to
designate a certain job because everybody did the same . . .
most of the time, and we were always within the same area.”
Also, “I had to check the work, and if something was done
wrong and the person was there, I would tell them to go back
because it was my responsibility to have the job done well.”
While denying authority to hire or to recommend hiring, Rami-
rez testified that two relatives did work for Respondent but
denied any role in their hiring. With regard to his brother
Alvaro, the alleged discriminatee stated that, in 1992, Alvaro
did ask him if work was available and that he sent Alvaro to
Respondent’s office where “I think he spoke to [Steve How-

sonal knowledge. In these circumstances, I fail to understand the basis
for counsel’s assertion that he was “improperly denied” the right to
engage in voir dire questioning of the witness.
46 For example, clay tile is much more difficult to lay than “barrel
tile.”
47 Guardado calculated it as being 15 percent of every $100 earned
by the foreman’s crew.
48 As stated above, when not working as a foreman, Ramirez per-
form roofing work, and he would always have a helper working with
him. On these occasions, the helper would be responsible for complet-
ing his own time records, and Ramirez would not be required to initial
or sign these. Ramirez testified that he worked by himself during De-
cember 1999 and January 2000, and Respondent offered no contrary
evidence.
49 As a foreman, Ramirez spent 90 percent of his time working along
with his crew.
ard], and . . . he did get the job.” Ramirez denied speaking to
Howard on his brother’s behalf and stated that Alvaro was re-
hired by Respondent in 1996 or 1998, but that he had no role in
this as “they already knew him.” He reiterated that he was not
authorized to send someone home for bad work, and, while
Howard said he had such authority, “we never employed it.”
Members of his crew would “sometimes” inform him that it
was necessary they leave work early, “but when I wasn’t there,
they would just leave. They didn’t have to tell me anything.”50
Further, during cross-examination, while admitting he received
a weekly bonus as a foreman51 and had use of a company radio,
Ramirez denied possessing authority to promote or to recom-
mend promotions or to give or recommend the giving of raises
to employees.
Counsel for Respondent sought to impeach Ramirez’ credi-
bility with regard to his authority as a foreman by confronting
the alleged discriminatee with his pretrial affidavit wherein he
stated:

I was employed as a foreman for Davey. My job involved su-
pervising other employees and working with them. I super-
vised anywhere between one to 10 employees, depending
upon how much work was assigned to me. In performing my
supervisor duties, I assigned the employees under me what
job they had to do. I maintained their time cards. If an em-
ployee had to leave early for a doctor’s appointment or for
another reason, I had the authority to grant him time off. I had
granted time off to employees in the past. I had the right to
verbally discipline employees, and I also had the authority to
send them home if they failed to perform on the job. I know I
had this authority because . . . Steve Howard told me I had it
at the time he appointed me the foreman.

Asked if was true he had authority to grant time off if em-
ployees had to leave early, Ramirez first testified “But I had to
ask Steve first if he authorized it” and, later, testified “Steve
told us that only in an emergency I could do it something hap-
pened, but nothing ever happened.” He then contradicted him-
self, stating he had granted time off “like when somebody had
to go to court on a traffic ticket or something” and he was re-
quired to “advise” the superintendent “before I did it.” Ramirez
further testified with regard to employees, who left work early,
“it wasn’t time off because we were working by the piece.”
Finally, he conceded being authorized to discipline employees,
including sending them home, “but it never happened.”
Celestino Gonzales testified that, as an operator and as the
leader of a loading crew, he had no authority to hire, to fire, to
transfer, to promote, to discipline, to assign work (“We worked
as a group . . . or as a team”), to reward, or to remedy griev-
ances. During cross-examination, while stating that, rather than
towards the employees on his crew, his responsibilities went
only to the job itself, he conceded “I was in charge of [telling
50 In such a circumstance, Ramirez “would just tell the supervisor
Steve, and he would send somebody else.” Apparently, under the piece
rate system, under which Respondent’s employees worked, they were
only paid for the work they performed. Thus, when an employee left
the job for any reason, he was not compensated for any lost worktime.
51 Ramirez said this bonus was compensation for driving from job to
job.

DAVEY ROOFING, INC. 237
the other employees the location of their work, the tile to be
used, and the color].” Further, he denied telling the employees,
who were on his crew, what or how to do their work—“They
already knew their jobs . . . they knew what they had to do.”
However, he conceded that he was required to check the
work of his crew—“I would go up and check that the tile was
enough tile for the house” and “I would have to check the pa-
per, check the number . . . and go back and get more” tile.52
Also during cross-examination, Gonzales denied being author-
ized to transfer or recommend transfers, to suspend or recom-
mend suspensions, to lay off or recommend layoffs, to recall or
recommend recalls, to promote or recommend promotions, to
fire or recommend discharges, or to hire or recommend hir-
ing.53 In the latter regard, Gonzales conceded informing Mar-
tin Gonzalez to fill out a job application and that Gonzalez was
hired by Respondent.54 Finally, while conceding that Respon-
dent equipped him with a radio telephone and that he was re-
sponsible for keeping the time records for members of his crew,
Gonzales denied receiving bonus payments, which other em-
ployees did not also receive—“I only received one bonus of
$10, once only, because supposedly we were good workers.”
On this point, he denied receiving a bonus at the end of a job
and, when asked if he received more pay than others on his
crew, replied, “My helpers, they received 33 percent, and I
would receive 34 percent, just one percent more.”55
B. Legal Analysis and Conclusions
Initially, I shall discuss and analyze the alleged violations of
Section 8(a)(1) of the Act. In the complaint, the General Coun-
sel alleges that Salvador Guardado’s attempt to attend a sched-
uled meeting between agents of the Union and several of Re-
spondent’s residential roofers at the former’s meeting hall on or
about October 27, 1999, constituted unlawful surveillance of
Respondent’s employees’ activities in support of the Union. In
this regard, there is no dispute that, having become aware of the
date, time, and location of the meeting from a union flyer,
Guardado arrived at the Union’s hall in his truck a few minutes
before the scheduled start of the meeting, parked in the parking
lot where he encountered Antonio Diaz. Guardado said the
flyer was an invitation for Respondent’s employees to attend a
meeting there with union agents, he was an employee, and he
wanted to attend. Diaz replied that the meeting was not for
superintendents or supervisors and that Guardado would not be
permitted to attend. Thereupon, Guardado turned, walked back

52 Gonzales initially stated that his superintendent, Uribe, would “of-
ten” check on his crew’s work, stating this would be “every day for
“more or less around half an hour.” Moments later, he added that Uribe
would “always” be at the jobsite but would not always be checking his
crew’s work.
53 In his posthearing brief regarding Celestino Gonzales’ supervisory
authority, counsel for Respondent asserts that the former recommended
8 to 10 individuals who were hired, that at least three employees were
recalled based on his recommendation, and that he effectively recom-
mended the promotion of his own brother to a foreman position. There
is no record evidence supporting any of these assertions.
54 Martin Gonzalez corroborated his uncle on this point but denied
that he disclosed their relationship at the time of his hire or that Celes-
tino recommended Martin for a loader job.
55 The percentage was “of what we did in a week.”
to his truck, and drove away. Several employees were standing
nearby during the incident, and Guardado admitted recognizing
alleged discriminatee, Jesus Camargo. In asserting that Guar-
dado’s actions were violative of Section 8(a)(1) of the Act,
counsel for the General Counsel relies on Porta Systems Corp.,
238 NLRB 192 (1978), in which the Board concluded that at-
tendance at four separate meetings between union agents and
the respondent’s employees by three company leadpersons,
each of whom possessed statutory supervisorial authority, con-
stituted unlawful surveillance. Arguing to the contrary, counsel
for Respondent relies on a Board decision, decided 6 weeks
prior to the above decision—Osco Drug, Inc., 237 NLRB 231
(1978). In Osco Drug, a statutory supervisor attended a union
meeting held at a hotel. Employees recognized the supervisor
and, while requesting that he not report to management officials
about what he observed, a union agent did not request that he
leave. Inasmuch as his presence was open and as he was not
requested to leave and as the union’s organizing campaign was
not a secret, the administrative law judge, whose decision was
adopted by the Board, was “unwilling to find surveillance by
the mere presence of” the supervisor at the meeting. Id. at 234.
Noting that Diaz refused to permit Guardado to attend the
meeting and that the latter complied and immediately departed,
I do not believe that Guardado’s attempt to attend a meeting,
which had been overtly publicized by the Union, during an
undisguised organizing campaign, constituted unlawful surveil-
lance. In these circumstances, Osco Drug, supra, appears to be
the applicable precedent, and I shall recommend that paragraph
6(a) of the complaint be dismissed.
The General Counsel next alleges in the complaint that Re-
spondent violated Section 8(a)(1) of the Act by informing its
employees that it would be futile for them to support the Union
and by threatening them with suspension and discharge for
supporting the Union. With regard to these allegations, while
Jesus Camargo and Salvador Guardado each appeared to be a
generally frank and trustworthy witness, as compared to
Camargo, Guardado was the more impressive witness and I am
unable to credit the former’s antipodal testimony on these
points. Thus, while testifying that, on one occasion in Respon-
dent’s office, Guardado approached and, in the presence of
other employees, told him “that the Union wasn’t good and that
the benefits weren’t any good either” and, on another occasion
in Respondent’s office, while he was conversing with other
employees about the Union, Guardado approached and told him
“not to go to the meetings because we could be suspended or
fired,” Camargo was effectively impeached by his pretrial affi-
davit wherein he combined these two comments into one con-
versation at a jobsite rather than separate conversations at Re-
spondent’s office. Further, during cross-examination, he later
contradicted himself as to the second comment, stating he was
alone when Guardado approached him. By the foregoing, I am
convinced that neither of the alleged conversations occurred;
however, Guardado admitted that he did have one conversation
with Camargo about the Union—on January 26, 2000. Thus,
after he gave the alleged discriminatee his safety warning and
after Camargo accused Respondent of becoming “more diffi-
cult” upon the advent of the Union’s organizing campaign, “as
a friend,” Guardado informed Camargo “maybe what the Union

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
was offering wasn’t really what was going to happen.” While
counsel for Respondent contends that Guardado’s comment
was merely “an informational statement of opinion,” counsel
for the General Counsel argues that what he said was intended
to convey to Camargo and, presumably, to other employees the
futility of supporting the Union as their collective-bargaining
representative. I agree with counsel for Respondent. The deci-
sions of the Board, on which counsel for the General Counsel
relies (API Industries, 314 NLRB 706 (1994); Jennie-O Foods,
301 NLRB 305 (1991); and Jones Plumbing Co., 277 NLRB
437 (1985)), concern statements, such as “If I want, we will
never reach an agreement” and “[respondent] would never
agree to anything that the union would try to negotiate with
them,” which intentionally warn of the futility of seeking union
representation. In contrast, expressed in terms of “maybe,”
lacking words denotive of finality or definity, and absent ac-
companying threats of reprisal or promises of benefits, Guar-
dado’s comment seems clearly to have been an innocuous
statement of opinion as to what might result from negotiations
between Respondent and the Union. Further, there was no sug-
gestion or implication that Respondent would not negotiate in
good faith with the Union if duly recognized or certified. As
such, Guardado’s expressed opinion was privileged by Section
8(c) of the Act. In the foregoing circumstances, I shall recom-
mend the dismissal of paragraphs 6(c)(1) and (2) of the com-
plaint.
The complaint alleges that Steve Howard and Salvador
Guardado each unlawfully interrogated employees regarding
their union membership, activities, and sympathies. As to the
allegation pertaining to Howard, while the latter failed to ap-
pear at the hearing in order to deny what was attributed to him
during direct examination, Jose Ramirez, whose demeanor,
while testifying, was not that of a particularly veracious witness
and who exhibited only a modicum of probity, testified incon-
sistently. He initially asserted that, in early January 2000 in
Howard’s office, the latter asked “if I was involved with the
Union,” to which he replied “that I was thinking about it.”
Later, during cross-examination, Ramirez changed his testi-
mony, declaring that Howard asked “if I was going to the Un-
ion meetings, and I said no.” Likewise, with regard to the alle-
gation pertaining to Guardado, while the latter, who, in contrast
to Ramirez, was straightforward witness, generally, but not
specifically, denied what was attributed to him, Ramirez testi-
fied inconsistently. He initially testified that, on or about Janu-
ary 24, 2000, in Respondent’s office, the latter “asked me if I
supported the Union,” and that he said he was thinking about it.
During cross-examination, the alleged discriminatee changed
his testimony, stating, “He was asking me if I supported the
Union, if I agreed with them.” Notwithstanding that Howard
failed to testify at the hearing and deny what was attributed to
him by Ramirez and that Guardado did not specifically deny
what was attributed to him by Ramirez, given my impression
that he was not an entirely candid witness and his discordant
versions of the same conversations, I am not confident that
Ramirez was forthright concerning his purported conversations
with Howard and Guardado and cannot rely upon his testi-
mony. In these circumstances, I shall recommend that para-
graphs 6(b) and (d) of the complaint be dismissed.
However, I conclude that there is merit to the allegations of
paragraph 6(e) of the complaint—that Respondent, through
Patrick Kay, violated Section 8(a)(1) of the Act by interrogat-
ing employees concerning their union membership, activities,
and sympathies and by offering reemployment with Respondent
to discharged employees if they abnegated their support for the
Union. Jose Ramirez also testified with regard to these allega-
tions, and, while I do not view him as being entirely reliable, as
compared to Patrick Kay, he was a more sincere witness. Kay’s
demeanor, while testifying, was that of an inherently disin-
genuous witness, one not worthy of belief or reliance. More-
over, of course, Kay was unable to recall any conversations
with Ramirez and only generally, and not specifically, denied
what was attributed to him by the alleged discriminatee. Ac-
cordingly, I find that, a week after his discharge, Ramirez re-
turned to Respondent’s office in order to obtain his final check
and spoke to Kay, who, after initially asking Ramirez if he
“was with the Union,” told him “if [he] took [his] signature off
of the petition . . . he could help [Ramirez] to get back [his]
job.” Assuming that the alleged discriminatee was an employee
and not a supervisor, within the meaning of Section 2(11) of the
Act,56 Kay’s latter comment was blatantly unlawful. Thus, the
Board has held that an employer may act in violation of Section
8(a)(1) of the Act by its comments to unlawfully laid off or
former employees and by making job offers to applicants for
employment conditioned said individuals quitting their union.
Culley Mechanical Co., 316 NLRB 26 at 26 (1995); Honda of
Hayward, 307 NLRB 340, 349 (1992); Nissen Foods (USA)
Corp., 272 NLRB 371 (1984). Moreover, an offer of reinstate-
ment to an unlawfully discharged employee conditioned upon
cessation of his union activities is not a bona fide offer of rein-
statement. Romal Iron Works Corp., 285 NLRB 1178 fn. 1
(1987). Therefore, by conditioning reinstatement upon Rami-
rez’ recantation of his support for the Union, Kay acted in vio-
lation of Section 8(a)(1) of the Act. Further, while, given his
signature upon the residential roofing employees’ January 21
petition, Ramirez was an overt supporter of the Union, as Kay
was a high-ranking management official and his opening ques-
tion to Ramirez was accompanied by an unlawfully-imposed
reinstatement condition, Kay’s question must be viewed as
unlawful interrogation, violative of Section 8(a)(1) of the Act.
I next consider the alleged unlawful layoffs of Celestino
Gonzales, Martin Gonzalez, and Ricardo Camarena and the
alleged unlawful discharges of Jesus Camargo and Jose Rami-
rez. In this regard, Board law in Section 8(a)(1) and (3) cases is
well settled. Thus, as explained by the Board in Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999); in Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983), to set forth
a violation under Section 8(a)(3) of the Act, the General Coun-
sel is required to show by a preponderance of the evidence that
anti-union animus was a motivating factor in Respondent’s
conduct. Once this showing has been made, the burden shifts to
Respondent to demonstrate that the same action would have
taken place in the absence of or notwithstanding the employees’

56 I shall discuss this issue infra.

DAVEY ROOFING, INC. 239
activities in support of the Union. To sustain his initial burden,
that of persuading the Board that Respondent acted out of anti-
union animus, the General Counsel must show (1) that the em-
ployees were engaged in union activities; (2) that Respondent
was aware of or suspected the employees’ involvement in ac-
tivities in support of the Union; and (3) the employees’ activi-
ties in support of the Union were a substantial or motivating
factor for Respondent’s actions. Such motive may be demon-
strated by circumstantial evidence as well as by direct evidence
and is a factual issue. FPC Moldings, Inc. v. NLRB, 64 F.3d
935, 942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994). Four
points are relevant to the foregoing analytical approach. First,
in concluding that the General Counsel has established a prima
facie showing of unlawful animus, the Board will not “quantita-
tively analyze the effect of the unlawful motive. The existence
of such is sufficient to make a discharge a violation of the Act.”
Wright Line, supra at 1089 fn. 4. Second, once the burden has
shifted to Respondent, the crucial inquiry is not whether Re-
spondent could have engaged in its alleged unlawful acts and
conduct but, rather, whether Respondent would have done so in
the absence of the alleged discriminatees’ support for the Un-
ion. Structural Composites Industries, 304 NLRB 729 (1991);
Filene’s Basement Store, 299 NLRB 183 (1990). Third, pre-
textual discharge cases should be viewed as those in which “the
defense of business justification is wholly without merit”
(Wright Line, supra at 1089 fn. 5), and the “burden shifting”
analysis of Wright Line need not be utilized. Arthur Anderson
& Co., 291 NLRB 39 (1989). Finally, as to the latter point, “it
is . . . well settled . . . that when a respondent’s stated motives
for its actions are found to be false, the circumstances warrant
the inference that the true motive is an unlawful one that the
respondent desires to conceal.” Fluor Daniel, Inc., 304 NLRB
970, 970 (1991); Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1966).
In my view, counsel for the General Counsel has met its bur-
den of proof and established that antiunion animus was the
motivating factor in its decisions to lay off Gonzales, Gonzalez,
and Camarena and to discharge Camargo and Ramirez. Thus,
each of the alleged discriminatees, including Camarena, ap-
pears to have been a supporter of the Union and attended union
meetings. In addition, Gonzales, Gonzalez, Camargo, and Ra-
mirez participated in the roofing employees’ rally outside the
Las Vegas office and warehouse facility on January 21, and the
signature of each alleged discriminatee, including that of Cama-
rena, is on the roofing employees’ petition, which was given to
Respondent on January 21, 2000. Respondent’s knowledge of
the contents of the petition is clear. On this point, there is no
dispute that, on January 21, the Union sent a copy of the peti-
tion, by facsimile, to Respondent’s Las Vegas office; that a
copy of the petition was sent from Respondent’s Las Vegas
office to its corporate office in Irvine, California; and that, at
the latter location, officials, including Tim Davey, Patrick Kay,
and Cheryl Daniel,57 closely reviewed and discussed the docu-

57 Daniel’s demeanor, while testifying, was that of a mendacious
witness. In my view, she testified in a manner calculated to buttress
Respondent’s defenses to the allegations of the complaint rather than
truthfully. In short, as with Kay, her testimony is not worthy of belief.
ment on the following Monday. The timing of Respondent’s
layoff of the entire Celestino Gonzales loading crew on that
very Monday afternoon is redolent of unlawful animus. The
Board has long held that adverse employee actions, which oc-
cur immediately after conspicuous union activity, are clear
indicia of unlawful animus. Standard Sheet Metal, Inc., 326
NLRB 411 (1998) (unlawful animus inferred from a suspension
given 1 day after the discriminatee argued with his supervisor
about a union); Norman King Electric, 324 NLRB 1077, 1077
(1997) (unlawful animus inferred from the fact that the dis-
criminatees were let go “only after they had engaged in pro-
tected picketing”); Best Plumbing Supply, 310 NLRB 143, 143
(1993) (unlawful animus inferred from the fact that the dis-
criminatee was terminated 30 minutes after he “took issue”
with a supervisor’s statements at an employee meeting during
which company officials expressed opposition to a union); and
Pincus Elevator & Electric Co., 308 NLRB 684 (1992) (unlaw-
ful animus inferred from the fact that the discriminatees were
terminated 1 day after their attendance at a union meeting).
Further, given the utterly contradictory nature of Respondent’s
defense, as set forth below, what I view as the pretextual nature
of the discharges of Camargo and Ramirez is likewise clearly
suggestive of unlawful animus. Also demonstrative of Respon-
dent’s antiunion animus was the unlawful condition, which
Patrick Kay placed upon his offer of reinstatement to Jose Ra-
mirez—that the alleged discriminatee remove his signature
from the Las Vegas residential roofing employees’ January 21
petition.
Regarding the layoffs of Celestino Gonzales, Martin Gon-
zalez, and Ricardo Camarena, the burden shifted to Respondent
to establish that it would have laid off the three alleged dis-
criminatees notwithstanding their support for the Union. Re-
spondent asserts that the three members of Celestino Gonzales’
loading crew were laid off due to a decline in work. At the
outset, while Patrick Kay admitted that Steve Howard, who is
no longer employed by Respondent and who did not testify at
the hearing, made the decision to lay off the three alleged dis-
criminatees without any input from him, Cheryl Daniel contra-
dicted him, asserting that Kay himself told her he was going to
be laying off the employees, and, despite being reminded about
his admission, did not retract her assertion. Moreover, Respon-
dent’s proffered testimony, regarding an asserted slow down of
available work, was inconsistent and uncorroborated. At first
asked if, during 2000, there had been a slow down in the avail-
able work for loaders, Kay replied, “No. It was steady.” Imme-
diately thereafter, he contradicted himself when asked if he
recalled the layoff of a loading crew—“I’m not sure of the
month, but it was a slow time. It was when we slowed down.”
Subsequently, he sought to palliate his prior testimony—
deceitfully, in my view, stating that he had “misunderstood”
what he had originally been asked and that what he meant was
there had been no change in the availability of work since the
layoffs. Cheryl Daniel testified that Kay informed her that the
work slow down occurred during February 2000; however, Kay
failed to corroborate her on this point. Further, Respondent
offered no corroborating documentation, establishing a slow
down in work either generally throughout the Las Vegas area or
specifically at the Red Rock housing development. In the in-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
stant fact circumstances, the significance of this omission can
not be overstated, for, as another administrative law judge
wrote, “one reasonably would expect some independent cor-
roborating proof of the Respondent’s extraordinary conditions
in its business that would necessitate layoffs.” Power Equip-
ment Co., 330 NLRB 70, 76 (1999). Indeed, the Board has held
that it is “incumbent” upon an employer, who asserts an eco-
nomic defense, to proffer more than oral testimony. Reeves
Rubber, Inc., 252 NLRB 134, 143 (1980). In addition, in the
absence of Steve Howard, the only evidence, concerning the
availability of work at the Red Rock jobsite, is found in the
respective testimony of Celestino Gonzales and Martin Gon-
zalez, each of whom appeared to be testifying in a frank and
forthright manner. According to the former, when Howard
informed him of the layoffs on January 24, his crew had been
working “six or seven days per week” and between 8 and 10
hours each day and had just worked the entire weekend. Also,
preparatory roofing work was being finished on many houses,
and no one previously had mentioned to him the possibility of a
layoff. Likewise, Gonzalez testified that, at the time of his lay-
off, six houses were ready for the placement of roofing materi-
als, enough work for a week or two, and numerous houses were
in the construction process. Next, both Kay and Daniel testified
that seniority is a factor in layoffs and that, inasmuch as the
Celestino Gonzales loading crew had the least seniority of the
four Las Vegas area loading crews, the three alleged discrimi-
natees were selected for layoff; however, as above, no corrobo-
rative documentation was offered and it does not appear that
the signatures of any of the remaining three operators appears
on the January 21 petition. Finally, while it is true that, subse-
quent to the layoffs of Celestino Gonzales, Martin Gonzalez,
and Ricardo Camarena through September 2000, Respondent
utilized one of its existing loading crews to perform its loading
work at the Red Rock jobsite, no operator had been hired to
replace Celestino Gonzales, and not until June 15 did Respon-
dent hire another loader, it is also true that no less than 74 resi-
dential roofing employees were hired by Respondent on a full-
time or temporary basis during the period December 1999
through September 2000; that three new loader employees were
hired during the summer 2000 and Respondent offered no
documents corroborative of Daniel’s assertion they replaced
employees on the three existing loading crews; and that, during
the time period October 1999 through the date of the hearing,
approximately 40 roofing employees, other than those classi-
fied as operators and loaders, performed loading work and were
compensated for such work. Based on the foregoing, it is clear,
and I find, that Respondent has failed to meet its Wright Line,
supra, burden of proof that it would have laid off Gonzales,
Gonzalez, and Camarena notwithstanding their support for the
Union.
With regard to alleged discriminatees Camargo and Ramirez,
Respondent’s purported defense to their alleged unlawful dis-
charges is based on the respective testimony of Salvador Guar-
dado and Patrick Kay; however, their attestations, concerning
Respondent’s putative decision making process and of its ra-
tionale underlying the discharges, are utterly antithetical in
nature and not worthy of belief. Thus, as to the former, Guar-
dado testified that, the day after each alleged discriminatee had
refused to sign his safety warning notice, he spoke to Kay one
time over a speaker-phone in Steve Howard’s office and merely
told Kay he had given out 12 violations and “two of them had
refused to sign” and that Kay characterized this as insubordina-
tion and instructed Guardado to terminate the employees. In
contrast, Kay testified that, on the day of the safety sweep,
Guardado twice telephoned him at his office on his cellular
phone from a jobsite; that, during their first conversation,
Guardado informed him a “few” employees had refused to sign
their warning notices and named them, and he instructed Guar-
dado to inform the employees their jobs were not in jeopardy
and it was just company policy for them to acknowledge receipt
of the warnings; that, during their second conversation later that
day, Guardado told him the employees again had refused to
sign their warning notices and were exhibiting an “insubordi-
nate” and “disrespectful” attitude toward him; and that he
agreed such was insubordination and instructed Guardado to
discharge the employees.58 Further, while Guardado, who
denied the occurrence of Kay’s sequence of events and denied
first characterizing the alleged discriminatees’ respective be-
havior as insubordinate, quoted Kay as saying that the alleged
discriminatees’ “insubordination” was the refusal of each to
sign his safety warning notice and conceded not even knowing
such behavior could be termed insubordination, Kay testified59
that each alleged discriminatee’s insubordination was mani-
fested in two ways—his refusal to execute the warning notice
and what he said to Guardado. Moreover, while Guardado de-
nied that either alleged discriminatee made any derogatory
comment of a personal nature to him, Kay insisted that what he
found insubordinate was their “lack of respect for a supervi-
sor.”60 In these circumstances, one may only conclude that
Respondent’s asserted defense for the terminations of alleged
discriminatees, Camargo and Ramirez, was nothing but a ca-
nard—a pretext designed to obfuscate Respondent’s actual
motivation—its unlawful animus toward its Las Vegas residen-
tial roofing employees who supported the Union.
I turn now to Respondent’s contentions that Jose Ramirez
and Celestino Gonzales were not employees but rather supervi-
sors within the meaning of Section 2(11) of the Act. As to their

58 Corroborative of my view that Kay was dissembling was his in-
ability to explain how the employees had acted insubordinately. He
averred that he was relying upon what Guardado told him.
59 Kay, who insisted employees are just expected to do so, conceded
that there is no policy or practice, requiring employees to execute safety
warning notices.
60 Inasmuch as Cheryl Daniel was not involved in the decision to
terminate alleged discriminatees, Camargo and Ramirez, I place no
reliance upon her justification for the discharges—safety is of such
paramount importance to Respondent that failing to acknowledge a
safety rules violation places Respondent “at risk.” In this regard, I note
that Respondent’s safety policies and procedures manual neither con-
tains a requirement that employees sign safety warning notices nor sets
forth a punishment for failure to do so. Further, while, in fact, Respon-
dent has terminated employees pursuant to its progressive disciplinary
policy, it is also true that Respondent has merely suspended, but not
terminated, employees for serious acts of misconduct including disre-
garding a supervisor’s instructions and damaging relations with a cus-
tomer and using abusive language toward and fighting with fellow
employees.

DAVEY ROOFING, INC. 241
status as statutory supervisors, I note, at the outset, that the
burden of establishing that an individual is a supervisor within
the meaning of Section 2(11) of the Act rests on the party—
herein, Respondent—who asserts supervisory status. Hausner
Hard-Chrome of KY., Inc., 326 NLRB 426, 427 (1998). Sec-
tion 2(11) of the Act defines a supervisor as:

[A]ny individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or to ef-
fectively recommend such action, if in connection with the
foregoing the exercise of such authority is not of a routine or
clerical nature but requires the use of independent judgment.

The statutory indicia quoted above are to be read in the dis-
junctive; as stated by the Board in Great American Products,
312 NLRB 962, 962 (1993), “an individual may be deemed a
supervisor within the meaning of [the above provision] if it is
shown that he or she possesses the authority to engage in any
one or more of the functions enumerated there and uses inde-
pendent judgment in exercising such authority.” Further, an
individual, who is alleged to be a supervisor, must exercise his
or her authority in the interests of the employer, and “perform-
ance of those functions in a merely routine, clerical, perfunc-
tory, or sporadic manner will not suffice.” Nursing Center at
Vineland, 318 NLRB 901, 904 (1995); Great American Prod-
ucts, supra. By the foregoing, Congress meant to ensure that
only individuals, who are vested with “genuine management
prerogatives” are included within the definition, and “the Board
must judge that the record proves that an alleged supervisor’s
role was other than routine communication of instructions be-
tween management and employees without the exercise of any
significant discretion.” Great American Products, supra;
Quadrex Environmental Co., 308 NLRB 101, 102 (1992).
Moreover, while an employer ostensibly may grant supervisory
authority to individuals, statutory supervisory status requires
the existence of “actual authority,” and “mere paper authority
does not confer supervisory status.” F. A. Bartlett Tree Expert
Co., 325 NLRB 243 fn. 1 (1997). Also, absent evidence that
individuals possess any of the enumerated indicia of supervi-
sory status in Section 2(11), “there is no reason to consider so-
called secondary indicia, such as their titles, the employee-
supervisor ratio . . . or pay differentials between them and oth-
ers in their departments.” Hausner Hard-Chrome of KY, Inc.,
supra at 427. Finally, the Board has a duty not to construe the
statutory language too broadly because the individual found to
be a supervisor is denied the employee rights that are protected
under the Act. Azusa Ranch Market, 321 NLRB 811, 812
((1996); Hydro Conduit Corp., 254 NLRB 433, 437 (1981).
I do not believe that Jose Ramirez should be categorized as a
2(11) supervisor for Respondent. Thus, analysis of Respon-
dent’s own description of a foreman’s authority, which, Patrick
Kay admitted, was accurate, discloses that it includes none of
the statutory indicia of supervisorial authority. Moreover, Sal-
vador Guardado admitted that, while acting as a foreman over a
roofing crew, Ramirez, who spent 90 percent of his time work-
ing with his tools, possessed no authority to hire or fire em-
ployees, to recommend the discharge of employees, to lay off
or recall employees from layoff status, or to promote61 or re-
ward employees. While Guardado stated that Ramirez had rec-
ommended the hiring of eight to ten individuals, he conceded
three (Ramirez’ brother, his cousin, and one other) were hired
because they previously had worked for Respondent, and the
remainder were hired after each was interviewed regarding his
knowledge of roofing work. Guardado further admitted that
Ramirez lacked authority to suspend employees, and, while the
alleged discriminatee ostensibly was authorized to discipline by
sending employees, who paid no attention to his instructions, to
the office, Guardado was unable to recall when, if ever, Rami-
rez did so. Ramirez himself conceded he possessed authority to
discipline contumacious employees by ordering them to leave
the jobsite; however, there is no record evidence that he ever
exercised said authority and he denied doing so. Regarding the
assigning of work and transferring personnel, Guardado con-
ceded that the work of the employees on a roofing crew is re-
petitive on a daily basis and a foreman’s assignment of work
entails merely directing employees to work on particular houses
and that, while foremen inform superintendents if they have
more workers than are required to complete the assigned work,
the superintendents ultimately are responsible for transfers
including deciding upon the locations to which employees are
to be transferred. Also, while there can be no doubt that Rami-
rez possessed authority to grant time off to employees on his
roofing crews, roofers are paid by the piece for their work and
are not paid for unfinished work.
Furthermore, during his tenure with Respondent, Ramirez
did not regularly act as a roofing foreman; rather, he “some-
times” worked in said capacity and “sometimes” worked as a
rank-and-file roofer along with a helper. When performing
work in the latter capacity, which he was doing at the time of
his discharge, Ramirez conceded he was responsible for the
work performed by his helper; however, Respondent failed to
offer, and the record is devoid of, any evidence probative of his
statutory supervisorial authority in such circumstances. Further,
while an individual, who acts as a foreman for Respondent,
must place his signature upon the weekly time records for each
person on his crew, the alleged discriminatee was uncontro-
verted that, while just performing roofing work, he was not
required to execute the weekly time records of his helper.
Therefore, assuming arguendo that, while working as a foreman
over a roofing crew. Ramirez exercised the authority of a statu-
tory supervisor, and that, during the remainder of his tenure
with Respondent, he worked as a rank-and-file employee, “the
legal standard for a supervisory determination is whether the
individual [spends] a regular and substantial portion of his
working time in a supervisory position or whether such work is
merely sporadic and insignificant.” Gaines Electric Co., 309
NLRB 1077, 1078 (1992). As stated above, it was Respon-
dent’s burden of proof, and, other than Ramirez’ own, uncon-
troverted, and vague estimate of his time, there is no record

61 Guardado stated that Ramirez was authorized to recommend the
promotion of employees, who worked on his crews, for promotion to
foreman positions; however, he conceded that, prior to promotion, such
employees are sent to other housing tracts where they are observed by
superintendents to determine if they are able to perform the work.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
evidence, establishing that he worked other than sporadically as
a foreman. Accordingly, I believe Respondent failed to meet its
burden of proof in this regard—to establish that Ramirez spent
a “regular and substantial portion” of his working time as a
foreman for Respondent. In all the foregoing circumstances, I
conclude that, at the time of his discharge, Jose Ramirez was an
employee for Respondent within the meaning of Section 2(3) of
the Act and not a supervisor within the meaning of Section
2(11) of the Act.62
Likewise, I do not believe that Celestino Gonzales acted as a
2(11) supervisor for Respondent. Thus, other than Patrick
Kay’s assertion that, as an operator, Gonzales’ foreman func-
tions were the same as those of Jose Ramirez and that the duties
and responsibilities of foreman “go straight across the board,”
Respondent offered no evidence regarding Gonzales’ alleged
statutory supervisorial status, and I place no reliance upon the
testimony of the mendacious Kay. Gonzales, whose demeanor,
while testifying, was that of a candid witness, specifically de-
nied having any authority to hire, to fire, to layoff and to recall,
to transfer, to promote, to discipline, to assign work, to sus-
pend, to reward, to remedy grievances, or to recommend trans-
fers, promotions, or the hiring of employees or their discharges.
In these circumstances, as he possessed none of the primary
indicia of a statutory supervisor,63 I find that, at the time of his
layoff by Respondent, Gonzales was an employee within the
meaning of Section 2(3) of the Act.
Based on the foregoing, I find that Respondent laid off its
employees, Celestino Gonzales, Martin Gonzalez, and Ricardo
Camarena, and discharged its employees, Jesus Camargo and
Jose Ramirez, because of their support for the Union in viola-
tion of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

62 I have, of course, considered that, when working as a foreman,
Ramirez received a weekly bonus. Such is only a secondary indicia of
supervisorial authority; noting the questionable extent of his authority
to exercise any of the primary indicia of a 2(11) supervisor, any reli-
ance upon a pay differential between Ramirez and other employees is
not warranted.
63 While he suggested to Martin Gonzalez that he apply for a job
with Respondent, there is no record evidence that he recommended the
hiring of his nephew to Respondent.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By laying off its employees, Celestino Gonzales, Martin
Gonzalez, and Ricardo Camarena, because of their support for
the Union, Respondent engaged in acts and conduct violative of
Section 8(a)(1) and (3) of the Act.
4. By discharging its employees, Jesus Camargo and Jose
Ramirez, because of their support for the Union, Respondent
engaged in acts and conduct violative of Section 8(a)(1) and (3)
of the Act.
5. By conditioning its reinstatement of discharged employees
upon their renunciation of their support for the Union, Respon-
dent engaged in acts and conduct violative of Section 8(a)(1) of
the Act
6. By interrogating its employees regarding their union
membership, sympathies, and activities, Respondent engaged in
acts and conduct violative of Section 8(a)(1) of the Act.
7. The above-described unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. Respondent has engaged in no violations of the Act not
specifically found above.
REMEDY
I have found that Respondent committed serious unfair labor
practices within the meaning of Section 8(a)(1) and (3) and of
the Act. Therefore, I shall recommend that it be ordered to
cease and desist from engaging in such acts and conduct and to
take certain affirmative actions which are necessary to effectu-
ate the purposes and policies of the Act. Having concluded that
Respondent unlawfully laid off its employees Celestino Gonza-
les, Martin Gonzalez, and Ricardo Camarena and unlawfully
discharged its employees Jesus Camargo and Jose Ramirez, I
shall recommend that Respondent be ordered to offer to each
immediate and full reinstatement to his former position of em-
ployment or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or other
rights and privileges of employment to which each he may have
been entitled, and to make each whole, with interest, for any
losses he may have suffered as a result of Respondent’s unlaw-
ful discrimination against him. Backpay is to be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication].