Diversified Services Group, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2007

05-CA-033333 (N.L.R.B. Sep. 28, 2007)

JD–65–07
Silver Spring, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DIVERSIFIED SERVICES GROUP, INC.
and Case 5–CA–33333
PUBLIC SERVICE EMPLOYERS LOCAL
UNION 572, a/w LABORER’S INTERNATIONAL
UNION OF NORTH AMERICA
Stephanie Cotilla, Esq. and Anne K. Yereniuk, Esq.,
for the General Counsel.
V. Elizabeth Powell, Esq., of Washington, D.C. for
the Respondent.
Stephen Lanning, Director of Laborer’s Mid-Atlantic
Regional Organizing Coalition, of Reston, Virginia,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Washington,
D.C., on May 2–4, 2007. On November 3, 2006,1 the Regional Director filed an unfair labor
practice charge alleging that, on or about October 30, Diversified Services Group, Inc. (the
Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act by terminating
11 employees because they signed union authorization cards. On December 6, the charge was
amended to allege that the Respondent violated Section 8(a)(5) by refusing to recognize and
bargain with Public Service Employers Local Union 572 (the Union) after the latter presented
the Respondent with union authorization cards signed by a majority of the Respondent’s
employees. On December 14, the Regional Director approved the withdrawal of allegations of
8(a)(3) and (1) violations against 6 of the 11 alleged discriminatees. On December 29, the
Regional Director approved the withdrawal of allegations that the Respondent violated Section
8(a)(5) by refusing to recognize and bargain with the Union. A complaint and notice of hearing
issued January 30, 2007.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

1 All dates are in 2006 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The Respondent, a corporation with an office and place of business in Silver Spring,
Maryland, has performed services valued in excess of $50,000 for the Federal government
within the past 12 months. The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Respondent’s Operations
The Respondent, a facilities maintenance company, performs most of its work pursuant
to two contracts and monthly purchase orders with the National Institutes of Health (NIH).
Ginelle Brome is the Respondent’s owner and president. She employs two supervisors: Ronald
Orozco, the project manager, and Marvin Galdamez, a project supervisor. The NIH liaison to the
Respondent was project officer William Scofield.
On November 15, 2005, the NIH awarded a 1-year contract to the Respondent for turf
maintenance, and snow and ice removal services at the NIH’s Bethesda and Poolesville,
Maryland campuses (turf contract). Turf maintenance at the Bethesda campus covers 59.45
hectares, or approximately 147 acres, and includes mowing, trimming, edging, aerifying,
overseeding, fertilization, leaf removal, litter control, removal of down tree limbs, and herbicide
applications. Turf maintenance at the Poolesville campus covers 112.9 hectares, or 279 acres,
including 101 acres of fine lawns and 178 acres of fenced pasture fields.2 It includes lawn and
pasture mowings, and pavement edging. In November 2006, the parties exercised the option to
extend its term for 1-year until November 2007.3
On October 18, 2006, the NIH awarded another 1-year contract to the Respondent. This
contract is for the cleaning every weekend of seven parking garage facilities and the street
areas at the Bethesda campus (the cleaning contract). The cleaning contract’s term runs from
October 2006 to September 2007 and contains the option for additional term extensions.4
On April 26, 2006, the NIH generated a monthly purchase order to the Respondent for
shrub maintenance in June and September at both campuses. Shrub maintenance includes
weed control, trimming ground cover and hedges, and turf application. On July 19, the NIH
generated a monthly purchase order for shrub maintenance for October and a “projected”
purchase order for December. On September 18, the NIH generated a monthly purchase order
for November.5 Scofield faxed the November purchase order to Brome and handed a copy of it
to Orozco during the last week in October.6

2 Scofield explained that a hectare is the equivalent of 2-1/2 acres. (Tr. 182–183.) It is, in
fact, a unit of area equal to 10,000 square meters or 2.471 acres. See http://www.metric-
conversions.org/area/hectares-to-acres.htm.
3 The contract provided for four 1-year extensions beyond November 2006. (GC Exh. 2.)
4 This contract also has options for four additional 1-year extensions. (GC Exh. 66.)
5 GC Exh. 12.
6 This finding is based on Scofield’s unrefuted testimony that it was his custom and practice
to provide Orozco with the purchase order during the last week of the month preceding the work
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The five alleged discriminatees in this case and the dates they started working for the
Respondent are: Gregorio Cruz – February 2006; Jose Mendoza – April 2006; Jose Ferman –
April 2006,7 Agustin Ferman – April 2006; and Jose Chirino – May 2006. Jose Ferman served
as a foreman for a crew that performed shrub maintenance. At times, Cruz worked on his crew.8
Mendoza performed turf and shrub maintenance, snow removal, and cleaning contract work.
Agustin Ferman performed shrub maintenance, snow removal, and cleaning contract work.
Chirino performed shrub and turf maintenance, and snow removal. The employees were
assigned to the Bethesda campus, but several, including Mendoza and Agustin Ferman, also
spent 1 or 2 days at the Poolesville campus.9
The scope of work in the NIH contracts may, at the NIH’s discretion, be modified
depending on site conditions and the weather. Turf contract work, which is performed during
certain times of the year, is regulated by the NIH project officer’s monthly directives relating to
the scope of work involved.10 The turf and snow removal contract also sets forth the
approximate times of the year when the types of services required by the contract are to be
performed.
The scope of the Respondent’s services under the NIH contracts is set forth each month
in acquisition worksheets submitted by Scofield to the Respondent. In addition, Scofield issued
the Respondent acquisition worksheets for extra work (work not otherwise listed on the monthly
acquisition worksheet). The amount of work actually performed, however, is set forth in invoices
provided by the Respondent to the NIH at the end of each month. In addition, the Respondent
submits monthly reports showing the number of employees and hours it took to complete the
assigned projects.11
Mowing and trimming is performed weekly at both NIH campuses. At Bethesda, it is
performed between March and December. At Poolesville, it is performed between April and
November. Fertilizing generally takes place between August and November. Leaf removal
generally takes place from November to January. Litter removal is performed all year long.12
Snow and ice removal services are performed on both campuses between November and
March.13
B. Union Activity Begins
One morning in October 2006, approximately 11 of the Respondent’s employees met
with Ana Mendoza, a union organizer, in building 13 to discuss the benefits of union
_________________________
in the purchase order. (Tr. 196–197.)
7 Jose Ferman served as a foreman, but the parties stipulated that he is not a supervisor
within the meaning of Sec. 2(11) of the Act. (Tr. 573.)
8 Cruz did not testify and, aside from Jose Ferman’s testimony that he worked on his crew,
there is no proof as to the work that Cruz primarily did.
9 All but Cruz testified at the hearing and required a Spanish-language translator. I base the
finding as to employees’ starting dates on the information submitted by the parties in Jt. Exh.
1(A), 1(B) and 1(C). (Tr. 328–332, 350–351, 362–363, 371, 377, 386, 388.)
10 GC Exh. 2, Arts. C.1.1 and C.3.12.
11 The record contains only a few of the timesheets and they are only for November work.
(GC Exh. 13–30; Tr. 124–125, 187, 199–201).
12 GC Exh. 2, Art. C.3.11.
13 GC Exh. 2, Art. C.1.2.
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membership. The employees included Jose Ferman, Agustin Ferman, and Jose Chirino. As
they met, Galdamez drove by and saw the employees inside the building.14 He immediately
notified Orozco.15 Orozco immediately went to building 13. By that time, however, the meeting
had ended and the employees were working outside building 13. He approached Jose Ferman
and asked him what the meeting was about. At first, Ferman denied there was a meeting and
said the employees entered the building to get water. Orozco told him they “were having
meetings that he had not authorized” and directed Jose Ferman to stay out of the buildings.16
On or about October 6, about seven employees, including Agustin Ferman and Chirino,
met with Isabel Maran, a union shop steward, during their lunchtime in the courtyard of building
12. At the conclusion of the meeting, the employees signed union authorization cards. On or
about October 13, approximately 6 to 12 more employees met with Maran during lunchtime in
the building 12 courtyard. The employees included Jose Ferman, Gregorio Cruz, Jose
Hernandez, and Samuel Miranda. At the conclusion of the meeting, the employees signed union
authorization cards.17
On or about October 15, Orozco called Jose Ferman into his office in building 22.
Orozco told Jose Ferman that he and “the boss” were aware that employees were meeting in
the buildings, and that things were going to change. Jose Ferman initially denied that
employees were meetings in the buildings. Orozco then said the boss was angry and that it was
not going to happen again. Orozco told Jose Ferman that he did not care if a union came into
the workplace. On October 16, the day following his discussion with Orozco regarding
employees’ union activity, Jose Ferman’s duties changed. His truck driving duties were
reassigned to Nelson Ramirez and he was assigned to trash pickup.18

14 It would have seemed credible if Galdamez had stated simply that he reported the
meeting because the employees should have been working. I did not, however, find credible his
assertion that he was concerned that the employees were meeting in a sensitive building, since
he conceded that there would have been no problem if the employees met there after work
hours. (Tr. 511, 529.) Nor did I find credible his testimony on cross-examination that he was
unaware of any discussion about unions, the prior Representation case or that Orozco testified
before the Board. In fact, he professed to know nothing about what this case is about. (Tr. 521–
522.)
15 There was a discrepancy between Galdamez and Orozco as to how they communicated
that morning. Galdamez testified that he communicated with Orozco by telephone, but Orozco
recalled that Galdamez returned to his office. (Tr. 509, 529, 547.) In any event, it is notable that
the only name Orozco could recall Galdamez mentioning was Jose Ferman. (Tr. 74.)
16 Orozco confirmed that he spoke to Jose Ferman and told him not to hold meetings in NIH
buildings. He testified, however, that employees were prohibited from entering into four
buildings – buildings 1, 13, 31-B and 35. (Tr. 174–175, 544–577.) Jose Ferman, on the other
hand, testified on cross-examination that he told Orozco, at that time, that the meeting had been
about the Union. I did not credit that testimony, as Jose Ferman’s direct testimony omitted any
reference to mentioning the Union during this conversation. (Tr., 391–392, 412.)
17 These findings are based on the undisputed testimony of Maran, Agustin Ferman, Chirino
and Jose Mendoza. (Tr. 218, 233, 335, 345, 354–355, 366, 372, 378; GC Exh. 46–53.)
18 Orozco did not refute Jose Ferman’s credible account of this encounter. (Tr. 394–
397).
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C. The Layoffs
On October 14, Orozco verbally informed Jose Chirino and Oscar Lopez that they were
laid off because of the lack of work.19 On or around October 24, Orozco met with the employees
and announced there would be additional layoffs on October 31.20 At that time, the Respondent
had 26 employees on its payroll.
On October 30, Orozco posted a list of employees to be laid off, effective October 31.
They were: Jose Ferman, Agustin Ferman, Jose Mendoza, Chirino, Cruz, Miranda, and
Hernandez.21 When he saw his name on the list, Mendoza went to Orozco’s office for an
explanation. Orozco told Mendoza he was being laid off due to a lack of work and because he
signed a union authorization card. Later that day, Mendoza, Cruz and Agustin Ferman
approached Orozco and asked why they were being laid off. Orozco again referred to the lack of
work and the fact that they each signed a union authorization card.22

19 Chirino testified that Galdamez’ wife saw him and other employees meeting with Ana
Mendoza, but it is purely speculative to infer that Orozco laid off Chirino because of that. (Tr.
379–382.)
20 Carabantes and Calderon denied ever hearing Orozco say anything about unions at the
October 24 or any other meeting. However, there is no contention that Orozco referred to the
Union on October 24. In fact, the discriminatees who testified referred to layoff notices posted
on October 31. In any event, I did not find Carabantes and Calderon credible. Both testified that
their names were on a layoff list posted on October 24. (Tr. 466–470, 493–494.) In fact, neither
was laid off and actually saw an increase in hours worked over the next month. They failed to
address this incongruity. For the pay period ending November 1, both worked 80 hours—the
same as the previous pay period. For the pay period ending November 16, Calderon worked 96
hours and Carabantes worked 106 hours. For the pay period ending December 1, Calderon
worked108 hours and Carabantes worked 98 hours. In addition, both were oblivious to any
discussion of a union, and provided vague and inconsistent testimony. They were strikingly
similar in quickly answering “no” to questions as to whether either ever heard Orozco or other
employees talk about unions. (Tr. 466–467, 481, 498–499.)
21 Orozco testified that the layoffs were precipitated by a lack of work and that employees
were chosen for the list based on the following: Chirino, Cruz, and Agustin Ferman were new
employees; Jose Ferman was a new employee and threatened other employees; and Mendoza,
Miranda, and Hernandez were chosen based on work performance. (Tr. 149–150.) Orozco’s
explanation, however, was not credible in several respects. First, Chirino had been laid off 16
days earlier and was not around, but was still included on the list. It does seem like Orozco
included him on the list in order to make a point (Tr. 143–144.) Secondly, Orozco considered
Jose Ferman a good worker and did not encounter any protest from Jose Ferman until October
31 – after telling him why he was being laid off. In fact, the Respondent thought enough of Jose
Ferman’s abilities to employ him as the foreman of the shrub maintenance crew. (Tr. 552, 564–
565.) Lastly, there is no proof offered to show that the Respondent had any process in place to
evaluate employees’ work performance and that it, in fact, did so.
22 This finding is based on the credible and unrefuted testimony of Mendoza and Agustin
Ferman. (Tr. 336–340, 358). The Respondent notes, at p. 6 of its brief, that the General
Counsel failed to call Cruz as a witness and that Chirino testified that Orozco never made such
a statement. Cruz, having agreed to be a party, was within the control of the General Counsel.
He was not called and I considered drawing a negative inference that his testimony would not
have supported that of Mendoza and Agustin Ferman. However, the Respondent did not
request that I draw such an inference and, therefore, I decline to do so. With respect to Chirino’s
testimony that he never heard Orozco mention the Union, that contention overlooks the fact that
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On October 31, Jose Ferman returned from sick leave and, along with Agustin Ferman
and Mendoza, went to Orozco’s office. Galdamez was also present. Jose Ferman asked why he
was getting laid off. Orozco, who considered Jose Ferman a good worker,23 referred to the lack
of work and the fact that they signed union authorization cards. There was no lack of shrub
maintenance work, however, since Scofield had, during that week, provided Orozco with the
November purchase order for the continuation of shrub maintenance work.24 As Jose Ferman
protested, Galdamez taunted him and threatened to strike Jose Ferman. Jose Ferman
responded by threatening to smash Galdamez in the face with a shovel if the latter struck him.
Orozco told Galdamez to calm down. Mendoza also picked up papers from Orozco’s desk and
threw them to the floor. At that point, Orozco told the employees to leave his office. The
employees complied, left the office, and went to the Respondent’s main office in Silver Spring,
Maryland, in an attempt to meet with Brome. They were, however, unable to meet with her.25
After the encounter with the employees on October 31, Orozco prepared termination
forms indicating that Agustin Ferman, Jose Ferman, Mendoza, and Miranda were laid off.
Although there were seven employees laid off, these were the only termination forms that he
prepared.26 The stated reasons for laying off the employees were the reduced workload for
November and need to reduce the work force accordingly. In addition, Jose Ferman's form also
stated that he, on "several occasions has threatened other employees and today he came to
scream at me."27 The forms also indicated that none of the employees were eligible for rehire at
this time and that Miranda, Agustin Ferman, and Jose Ferman would not be recommended for
work on other projects. Mendoza’s form did not indicate whether he would or would not be
recommended for other projects.28
_________________________
Chirino was not present when the three employees approached Orozco. (Tr. 381.)
23 Orozco conceded this fact and did not testify as to any problems with Jose Ferman prior
to that date. (Tr. 552.)
24 Brome’s testimony that Scofield called her in October and told that there would be less
mowing in November is corroborated by the acquisition sheet for that month’s turf contract work,
which is actually dated December 5. (Tr. 558, 561; GC Exh. 11, p. 6). However, Brome did not
refute Scofield’s earlier testimony and the documentary evidence indicating that there was no
issue with November’s scheduled shrub maintenance work. (Tr. 196–197; GC Exh. 12, p. 4.)
25 Again, my finding that Orozco referred to the union cards as a basis for the layoff
decisions is based on the credible and unrefuted testimony of Mendoza and Agustin Ferman.
Regarding the Galdamez-Jose Ferman encounter, I found Jose Ferman much more credible
and relied on his testimony. Unlike Galdamez, Jose Ferman’s testimony, on direct and cross-
examination, was spontaneous and direct. Moreover, Orozco conceded that Galdamez became
angry at the meeting and Orozco told him not to hit Jose Ferman. I did find, however, that
Mendoza equivocated and looked at others in the hearing room before denying that he knocked
papers off of Orozco’s desk. Accordingly, I relied on the testimony of Orozco and Galdamez that
he did so. (Tr. 154–158, 397–409, 340–342, 360, 513, 525–526.)
26 This finding is based on the unrefuted testimony of Brome and Orozco and the evidence
produced by the Respondent in response to the General Counsel’s subpoena. (Tr. 165–166;
303–306: GC Exh. 5, 5a, 5b, 5c.)
27 Orozco initially testified that Jose Ferman was laid off, but converted it to a discharge
after the alleged threats at the October 31 meeting and the previously unreported alleged
threats made to Carabantes and Calderon. (Tr. 107, 160–163, 294.)
28 (GC Exh. 5, 5a, 5b, 5c and 5d).
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D. Orozco and Galdamez File Complaints with the Police
After the meeting, Orozco called Brome. She directed him to report the incident to
Scofield. Orozco and Galdamez then went to Scofield's office and told him and Mueller what
had occurred. Mueller called the NIH Police Department. Corporal David Warren responded
shortly thereafter and spoke with Orozco and Galdamez. He did not, however, speak with Jose
Ferman. Corporal Warren prepared an incident report listing only Orozco as the complainant
and the following additional “involved persons”: Galdamez, Mauro Calderon, Jose Garcia, and
Jose Ferman. The report, which was “approved” on November 2, included the following
allegations reported by Orozco:
The complainant, who is a foreman for grounds keeping stated that on 10-31-06 at
approximately 1300 hours he was advising the subject he was being laid off from work.
The complainant stated that the subject was upset and then told the complainant that he
knew where he lived. The complainant advised this officer that there was no physical
altercation, however the complainant believed that statement was an implied threat. The
complainant also stated the subject made the same threat to other co-workers who still
had their jobs. At this time the complainant only has the subjects first and last name
(Ferman, Jose). The complainant was unable to get the subjects N.I.H. contractors I.D.
before he left the campus.29
There was no further law enforcement involvement until January 11, 2007, when
Galdamez contacted Corporal Warren with additional allegations. Corporal Warren issued
another incident report containing essentially the same information as the November 2 report,
but listing Galdamez as the complainant, Jose Carabantes as an additional “involved person”
and including the following allegations reported by Galdamez:
On 10-31-06 at approximately 1300 hours the complainant Mr. Galdamez contacted the
N.I.H. Police in reference to a threat that occurred about a week prior. The complainant
told this officer he was threatened by a (Ferman, Jose) who was upset after finding out
he was being laid off from his job with grounds maintenance. The incident took place at
building 22 in the shop area. The suspect (Ferman, Jose) told the complainant that he
would smash a shovel in the complainant’s face. The threat was never carried out and
Mr. Ferman left the campus after the incident. Further investigation revealed that the
suspect made similar threats of physical violence to other employees including
(Calderon, Mauro and Carabantes, Jose). Attached are statements written by the
involved parties. According to Mr. Galdamez the suspect still has his N.I.H. contractors
I.D. and he is concerned that he may return to the campus.30
Galdamez’ additional assertion on January 11 that Jose Ferman threatened to strike him
with a shovel, was not previously reported to Corporal Warren and was inconsistent with
Orozco’s version, set forth in the November 2 report. Nor was it corroborated by any other
reliable evidence at that time, since the statements allegedly written by Calderon and
Carabantes were not attached to the incident report maintained by the NIH police department.31

29 The original report was generated on October 31, but not “approved” until November 2.
(GC Exh. 10, pp. 1–2.)
30 Interestingly, the report was noted as “approved” on January 11, 2007, but the original
date of October 31 remained. (GC Exh. 10 pp. 3–4.)
31 Officer Warren could not explain why the statements of Calderon and Carabantes were
missing and the Respondent did not call either of them as witnesses. On the other hand, Jose
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E. Most Employees Are Recalled
Beginning on November 22, the Respondent began recalling employees back to work. It
required all of the recalled employees, however, to sign reinstatement letters. The reinstatement
letters, which the Respondent had never had employees sign before, referred to the possibility
of future layoffs if work orders decreased, but came in several forms. Cruz and Chirino were
recalled on November 22 and 30, respectively. Their reinstatement letters stated that he was
recalled after the Respondent received “a new work order for the month of December 2006”
from Scofield. Hernandez was also recalled on November 22, but did not return to work until
December 11. His reinstatement letter confirmed Hernandez’ 2-week delay in reporting to work.
Agustin Ferman and Mendoza were recalled to work on December 22, and Miranda on
December 26, “in order to carry out additional jobs received by NIH, such as creek cleaning, leaf
removal, cleaning dumpster area and others.” In all, six of the seven employees were recalled to
work in November and December. The sole exception was Jose Ferman, who was terminated
after October 24. The Respondent’s reason for refusing to recall Jose Ferman was that he
threatened Galdamez and two other employees on other occasions. As previously noted,
however, Galdamez was the initial aggressor on October 31 and Jose Ferman’s remarks were
made in response to a threat by Galdamez. Furthermore, the alleged threats of the other two
employees, Carabantes and Calderon, were never reported to Orozco prior to October 31. In
any event, no other employees were laid off after January 1, 2007.32
F. The Respondent’s Scope of Work from September to December
An analysis of the Respondent’s treatment of its employees in October requires a review
of its personnel practices in conjunction with the work performed for the NIH prior to the layoffs.
The Respondent’s work force fluctuates seasonally and employees are generally assigned
various tasks within both contracts. Depending on the amount of work available, the
Respondent occasionally lays off employees. Orozco decides which employees get laid off and
which employees are recalled, but does not have a custom and practice in place.33
_________________________
Ferman credibly addressed this contention. He denied ever threatening Carabantes, but
conceded telling Calderon not to tell Orozco about the meetings with union organizers. (Tr. 404–
405.) Neither Carabantes nor Calderon were credible on this issue either. Carabantes testified
that Jose Ferman, his supervisor, once told him that he would hit him if he were a man, but gave
no indication as to why Jose Ferman was angry. (Tr. 471–472.) Calderon, who answered
extremely quickly on direct examination, was defensive and his testimony seemed overly
rehearsed. He testified that Jose Ferman accused him of being a snitch, but did not seem to
know what he was accused of snitching about. (Tr. 256, 259, 266.) Accordingly, I find that there
was no corroboration on January 11, 2007, for Galdamez’ assertions regarding threats against
other persons.
32 The unrefuted testimony of Brome and Orozco established that these are the only
reinstatement letters issued by the Respondent. (Tr. 113, 116–117, 300, 307–308; GC Exhs. 6,
54–59; Jt. Exh. 1(B)–1(C).)
33 Brome and Orozco provided contradictory testimony regarding the selection process for
layoffs. She testified that Orozco made the determination as to who was to be laid off. (Tr. 298.)
Orozco, evasive and vague in his testimony, deferred to Brome as to who would be laid off.
Moreover, when asked whether he makes the decision and if seniority was a factor, he
professed not to know about seniority and deferred to Brome. Notwithstanding his lack of
credibility on this issue, I find it most plausible that Brome deferred to Orozco, as her project
manager onsite, to decide who would be laid off in those situations. (Tr. 108–110.)
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From June 1 to August 31, Respondent had 30 employees on the payroll.34 Generally,
however, the Respondent employs approximately 12 employees to mow. An additional 10 to 12
employees perform shrub bed work, 1 or 2 employees perform litter control, about 8 employees
are required to do leaf removal, 3 employees to perform creek cleaning, and approximately 6 or
7 employees to perform the services required by the garage contract. The number of employees
required to perform snow removal depends on the amount of snowfall and, as needed, the
Respondent utilizes the services of another snow removal contractor.35 During August and early
September, the Respondent temporarily laid off two employees, Oscar Lopez and Jose Chirino.
Lopez and Chirino were newer employees, having been hired in April and May, respectively.36
In September, the Respondent performed the following turf maintenance, as called for in
the monthly acquisition worksheets: five mowings, trimmings, and litter removals at the
Bethesda campus; and five mowings and trimmings and one pasture mowing at the Poolesville
campus. In accordance with the monthly acquisition worksheet for shrub bed maintenance, the
Respondent also performed 1,370 hours on such work, and 16.8 hours on fence row
maintenance at the Bethesda campus. The Respondent billed the NIH a total of $80,789.60 for
turf maintenance work and $65,873 for shrub bed maintenance.37
In October, the Respondent had 26 employees on the payroll.38 In accordance with the
acquisition worksheet for that month, the Respondent performed four mowings, trimmings and
litter removals at the Bethesda campus, and four mowings and trimmings and one pasture
mowing at the Poolesville campus. The Respondent also performed 1,370 hours of shrub bed
maintenance and ground cover maintenance at the Bethesda campus. The Respondent billed
the NIH $65,704.48 for the turf maintenance and $65,075 for the shrub bed maintenance.39
During the last week in October, Scofield provided the Respondent with a purchase
order for shrub maintenance work in November. However, Scofield informed Brome in October
that there would only be about half the turf work at Bethesda in November and there would not
be any more mowing at Poolesville. It turned out, however, that Scofield issued additional
directives In November for turf work. Accordingly, the Respondent ended up performing 4
mowings, trimmings and litter removals, and 45 hectares, or 111.2 acres, of leaf removal at the
Bethesda campus, and 4 mowings and trimmings, and one pasture mowing at the Poolesville
campus. The Respondent also performed 1,320 hours of shrub bed winter grounds
maintenance, as scheduled in the November purchase order.40 In addition, during November,
the NIH issued the Respondent 14 acquisition worksheets for extra work.41

34 Jt. Exh. 1(B), p. 6.
35 Tr. 26–27, 104–105, 127–129.
36 Chirino testified that he was laid off for 4 days during the summer. (Tr. 374–375.)
Carabantes testified that he was laid off on two occasions prior to October 2006. (Tr. 464–465.)
Orozco testified that Lopez and Chirino were laid off in August 2006, but the payroll summary
submitted by the parties indicates that Chirino incurred a significant reduction in hours during
the period of August 1–15 and Lopez incurred a drastic reduction in hours during the period of
September 1–15. (Tr. 112; Jt. Exh. 1(A) and 1(B)).
37 GC Exh. 11–12, 34, 41.
38 Jt. Exh. 1(B), p. 6.
39 GC Exhs. 11, 35, 42.
40 The work indicated on Respondent’s November invoices were virtually identical to that
scheduled on the acquisition worksheet for that month. (GC Exh. 11, 36 and 43.)
41 The worksheets were dated from October to November 30, 2006. (GC Exh. 13, GC Exh.
Continued
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In accordance with the acquisition worksheets for December 2006, the Respondent
performed 1 mowing and trimming, 5 litter removals, and 45 hectares of leaf removal at
Bethesda. There was no work scheduled for the Poolesville campus, but the Respondent
performed the scheduled 1,320 hours of shrub winter grounds maintenance at the Bethesda
campus. The Respondent billed NIH $58,169.52 for the turf maintenance and $62,700 for the
shrub maintenance.42
Analysis
I. Orozco’s Statement Prohibiting Employee Meetings
The General Counsel alleges that the Respondent violated Section 8(a)(1) on or about
October 13 and 15 by promulgating an overly broad no-solicitation rule that restricted
employees from engaging in union activities in nonwork areas and during nonwork time, when
Orozco told employees at the Bethesda campus that they could not have any meetings. The
Respondent admits that, on or about October 13, Orozco admonished Jose Ferman from going
into building 13, but denies that he made any reference to union activity. The Respondent also
denies the allegation that Orozco had a conversation with Jose Ferman on October 15 in which
he referred to union activity.
It is well settled that an employer may prohibit solicitation of its employees during
working time and that such a rule is presumptively lawful. Our Way, 268 NLRB 394 (1983)
(“‘working time is for work”’). An employer may not, however, absent persuasive justification,
prevent employees from meeting with union organizers in nonwork areas and during nonwork
time. Any rule that does so is overbroad and unlawful. Krystal Enterprises, 345 NLRB No. 15,
slip op. at 37 (2005); A.P. Painting & Improvements, Inc., 339 NLRB 1206, 1207 (2003); K.B.
Specialty Foods Co., 339 NLRB 740, 742 (2003); Ambrose Electric, 330 NLRB 78 (1999).
The credible evidence established that only four specific buildings, including building 13,
were off limits to employees. On October 13, Orozco approached Jose Ferman, told him
employees were having unauthorized meetings and were to stay out of NIH buildings. He did
not limit his admonition to building 13. On or about October 15, Orozco called Jose Ferman into
his office and told him that he and Brome were aware of the employee meetings in the
buildings, and that things were going to change. Jose Ferman initially denied that employees
were meetings in the buildings. Orozco replied that Brome was angry, vowed that it would not
happen again and added that he did not care if a union came into the workplace. As such,
Orozco’s statement conveyed to Jose Ferman the message that employees were not to meet at
any time in any building at the NIH. Orozco accentuated his directive with a comment that
Brome was angry about the employee meetings.
Under the circumstances, Orozco’s comments could be reasonably understood to mean
that the Respondent would retaliate against Jose Ferman and other employees if they continued
to meet with union organizers. Under the circumstances, Orozco’s comments on October 13
and 15 coerced Jose Ferman in the exercise of his Section 7 rights and, thus, violated Section
8(a)(1).
_________________________
15 to GC Exh. 27).
42 GC Exh. 11, 37, 44.
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II. The Employee Layoffs
The General Counsel alleges that the Respondent violated Section 8(a)(1) on or about
October 30 and 31 when Orozco told Mendoza, Jose Ferman, Agustin Ferman, and Cruz that
they were laid off because they signed union cards. In addition, the Respondent is alleged to
have violated Section 8(a)(3) when it laid off Chirino on October 14, and Cruz, Agustin Ferman,
Jose Ferman and Mendoza on October 31, all because of their union activities. The Respondent
denied these allegations in its answer. However, in its brief, the Respondent overlooks the fact
that Orozco, in his testimony, never actually denied making such statements. Instead, it
contends that there is no documentary evidence to support such statements and relies on
Orozco’s explanation of the process that he followed in implementing layoffs.
An employee's decision to sign, or not sign, a union authorization card is an exercise of
Section 7 rights. As such, an employer violates Section 8(a)(1) by threatening to discharge any
employees who choose to engage in such activity. T. Steele Construction, Inc., 348 NLRB No.
79, slip op. at 14 (2006); Alaska Ship & Drydock, Inc., 340 NLRB 874, 880 (2003); Carroll &
Carroll, Inc., 340 NLRB 1328, 1331–1332 (2003).
On October 30, Orozco told Mendoza he was being laid off because of the lack of work
and for signing a union authorization card. Later that day, Orozco repeated that statement to
Mendoza, Cruz, and Agustin Ferman. On October 31, Orozco told Jose Ferman, Agustin
Ferman, and Mendoza the same—they were laid off because of the lack of work and they
signed a union authorization card. Under the circumstances, Orozco’s statements restrained
employees in the exercise of their Section 7 rights and, thus, constituted violations of Section
8(a)(1).
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 must prove, by a preponderance of the
evidence, that an employee engaged in concerted protected activity, the employer had
knowledge of the employee’s protected activities, the employer took adverse action against the
employee, and the action was motivated by discriminatory motivation. Proof of discriminatory
motivation may be based on either direct or circumstantial evidence. Robert Orr/Sysco Food
Services, LLC, 343 NLRB 1183 (2004). If the General Counsel establishes a prima facie case
by meeting these elements, the burden shifts to the Respondent to prove, also by a
preponderance of the evidence, that it would have taken such action even in the absence of the
protected conduct. Simply presenting a legitimate reason for its actions is not enough.
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 966 (2004); T. J. Trucking Co., 316 NLRB
771, 771 (1995); GSX Corp. v. NLRB, 918 F.2d 1351 (8th Cir. 1990).
With respect to the element of knowledge on the part of the Respondent, Chirino was
the first among the discriminatees to be laid off. Orozco did not tell Chirino that he was laid off
because he signed a union card. Instead, Chirino contends that Orozco probably knew this
because Galdamez’ wife saw him at the union meeting as she passed by. That is purely
speculative and, thus, Chirino failed to establish that Orozco knew that the former had engaged
in protected concerted activity. It is clear, however, that Orozco had such knowledge with
respect to the remaining discriminatees. On October 15, Orozco indicated to Jose Ferman that
he knew that employees were meeting about the Union. Subsequently, on October 30 and 31,
Orozco told Jose Ferman, Agustin Ferman, Mendoza, and Cruz they were selected for layoff, at
least in part, because they signed union authorization cards. In doing so, he expressed
antiunion animus and followed those sentiments with adverse action against employees who
engaged in protected concerted activity.
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Having established a prima facie case that the Respondent discriminated against Jose
Ferman, Agustin Ferman, Mendoza, and Cruz, the burden shifted to the Respondent to prove,
by a preponderance of the evidence, it would have laid off them off even in the absence of their
protected conduct. The General Counsel correctly states that the Respondent, in November,
performed the usual amount of turf contract work, plus additional work orders. The amount of
work the Respondent actually performed, however, is not determinative. The pertinent event
here is Scofield’s statement to Brome in October that the turf contract work for November would
be significantly less than the previous months. Brome’s testimony in that regard was
corroborated by the fact that the NIH did not issue the November acquisition sheet for turf
contract work until December 5. As such, the unrefuted proof supports the Respondent’s
contention that, as of October 30 and 31, it had a reasonable belief that it would have to pare its
November employee work force due to a significant reduction in the amount of turf contract
work.
Shrub work, however, was a different story. During the last week in October, Scofield
provided the Respondent with a purchase order for the continuation of shrub maintenance work
in November. The amount of work specified in that purchase order was typical of the amount
required in the prior months. This analysis is further complicated by the fact that the four
remaining discriminatees performed at least some shrub maintenance-related work prior to
October 31. While the record contains several daily timesheets for November indicating which
employees performed turf (“grounds”) maintenance and which performed shrub maintenance,
the record is devoid of any timesheets for dates prior to October 31. This prevented me from
determining the extent to which the discriminatees performed work other than shrub
maintenance. However, it is clear that Jose Ferman worked primarily on shrub maintenance; he
was foreman of the shrub crew and Orozco considered him to be a good worker. As to the
remaining discriminatees, however, we do not know the extent to which each of them also
performed turf and other work. Orozco did say that that they were selected for layoff because
they were newer employees and, in Mendoza’s case, not a good worker. Payroll summaries,
however, indicate that eight other employees were hired on or after May and were not among
those laid off on October 31: Nelson Ramirez, Oscar Ramirez, Jesus Vasquez, Armando
Guiterrez, Werner Marroquin, Salvador Soteto, Turcios Clemente, and Carabantes.43
Accordingly, the Respondent failed to meet its burden of establishing that Jose Ferman, Agustin
Ferman, Mendoza, and Cruz would have been laid off even if they had not signed union
authorization cards. Desert Toyota, 346 NLRB No. 3. slip op. at 2–3 (2005); Webco Industries,
334 NLRB 608 fn. 3 (2001); Avondale Industries, 329 NLRB 1064, 1066 (1999); T&J Trucking
Co., 316 NLRB 771 (1995).
III. The Implications of Jose Ferman’s Conduct on October 31
Finally, the Respondent’s contends that Jose Ferman’s actions, after being told he was
laid off, precludes the remedy of reinstatement. Where an employee is unlawfully discharged,
reinstatement and backpay are appropriate remedies unless the employer can show that the
conduct was so “flagrant” and “violent or of such character as to render the employee unfit for
further service.” C-Town, 281 NLRB 458 (1986). In such cases, the Board has looked at the
nature of the misconduct and taken into account whether the misconduct was an “emotional
reaction” to the employer's unlawful acts. Alto-Shaam, Inc., 307 NLRB 1466, 1467 (1992), citing
Blue Jeans Corp., 170 NLRB 1425 (1968); and NLRB v. M & B Headwear Co., 349 F.2d 170,
174 (4th Cir. 1965).

43 Jt. Exh. 1(A)–1(B).
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Jose Ferman’s alleged transgression was that he threatened to strike Galdamez and
had a history of threatening other employees. I found that contention to be a gross exaggeration
of the event. To put it bluntly, Galdamez started it. Clearly, Jose Ferman was angry about being
laid off. However, Galdamez taunted and then threatened to strike Jose Ferman, who
responded by telling Galdamez what he would do if he struck him—he would have smashed him
in the face with a shovel. Orozco had to calm down Galdamez and that ended the confrontation.
This type of spontaneous, emotional reaction in response to a discharge laced with unlawful
remarks has been found insufficient to deny reinstatement, especially where it occurs due to the
provocation of the employer. In re Palagonia Bakery Co., 339 NLRB 515, 530–531 (2003);
Caterpillar, Inc., 322 NLRB 674, 678–679 (1996). Moreover, I did not find the Respondent’s
reliance on the other two alleged threats credible, since they either did not happen or were not
brought to Orozco’s attention and documented prior to October 31. Accordingly, Jose Ferman’s
manifestation of displeasure at being laid off does not constitute a basis for precluding his
reinstatement.
Conclusions of Law
1. Diversified Services Group, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Public Service Employers Local Union 572 is a labor organization within the meaning
of Section 2(6) of the Act.
3. By (1) prohibiting employees from meeting with each other during nonwork time and in
nonwork areas, to talk about union-related matters, and (2) telling employees Jose Ferman,
Agustin Ferman, and Gregorio Cruz they were laid off, in part, because they signed union
authorization cards, the Respondent violated Section 8(a)(1) of the Act.
4. By discharging Jose Ferman, Agustin Ferman, Jose Mendoza, and Gregorio Cruz
because they signed union authorization cards, the Respondent violated Section 8(a)(3).
5. By engaging in the conduct described above, the Respondent engaged in unfair labor
practices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended44

44 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
Continued
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ORDER
The Respondent, Diversified Services Group, Inc., of Silver Spring, Maryland, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating against any employee for
supporting Public Service Employers Local Union 572 or any other union.
(b) Threatening employees they will be laid off if they sign union authorization cards or
engage in other protected concerted conduct.
(c) Prohibiting employees from meeting with each other during nonwork time and in
nonwork areas.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Jose Ferman, Agustin
Ferman, Jose Mendoza, and Gregorio Cruz 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 previously enjoyed.
(b) Make Jose Ferman, Agustin Ferman, Jose Mendoza, and Gregorio Cruz 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 section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records 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 facilities in Bethesda and
Poolesville, Maryland, copies of the attached notice marked “Appendix”45 in both English and
_________________________
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
45 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
Continued
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Spanish. Copies of the notice, on forms provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not 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 Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since October 13, 2007.
(f) Within 14 days after service by the Region, mail copies of the attached notice
marked Appendix46 in both English and Spanish, at its own expense, to all persons employed
by the Respondent in the turf (grounds) and shrub maintenance crews at the National Institutes
of Health’s Bethesda and Poolesville, Maryland campuses at any time from the onset of the
unfair labor practices found in this case until the completion of these employees’ work at that
jobsite. The notice shall be mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT is further ordered that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.
Dated, Washington, D.C. September 28, 2007
_____________________________
Michael A. Rosas
Administrative Law Judge
_________________________
National Labor Relations Board.”
46 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–65–07
Silver Spring, MD
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 violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for supporting Public
Service Employers Local Union 572 or any other union.
WE WILL NOT threaten you that you will be laid off if you sign union authorization cards or
engage in other protected concerted conduct.
WE WILL NOT coercively question you about your union support or activities and restrain or
prohibit you from meeting with other employees during nonwork time in nonwork areas.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Jose Ferman, Agustin Ferman, Jose
Mendoza, and Gregorio Cruz 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 previously enjoyed.
WE WILL make Jose Ferman, Agustin Ferman, Jose Mendoza, and Gregorio Cruz whole for
any loss of earnings and other benefits resulting from their discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Jose Ferman, Agustin Ferman, Jose Mendoza, and Gregorio Cruz, and
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the discharges will not be used against them in any way.
JD–65–07
Silver Spring, MD
WE WILL, within 14 days from the date of this Order, remove from our files, and ask the
Employer to remove from the Employer’s files, any reference to the unlawful discharges, and
WE WILL, within 3 days thereafter, notify them in writing that we have done so and that we will
not use the discharges against them in any way.
DIVERSIFIED SERVICES GROUP, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.