Eccles Painting, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2012

19-CA-069324 (N.L.R.B. Sep. 25, 2012)

JD(SF)-47-12
Boise, Idaho
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
ECCLES PAINTING, INC.,
and
Cases 19-CA-69324
19-CA-72568
PAINTERS DISTRICT COUNCIL 5,
Affiliated with INTERNATIONAL UNION
OF PAINTERS AND ALLIED TRADES
Irene H. Botero, Esq. and Richard C. Fiol, Esq.,
for the Acting General Counsel
Art Eccles, in pro se1,
for the Respondent
Omar Rubi, field representative, in pro se,
for the Charging Party
DECISION
STATEMENT OF THE CASE
Gerald M. Etchingham, Administrative Law Judge. This case was tried in Seattle,
Washington, on June 25-28, 2012. The Painters District Council 5, affiliated with the
International Union of Painters and Allied Trades (the Union) filed the initial charge in Case 19-
CA-69324, on November 21, 20112, which was amended subsequently on March 27, 2012, and a
second charge in Case 19-CA-72568, was filed on January 13, 2012. The Regional Director for
Region 19 issued the consolidated complaint (the complaint) on April 26, 2012. The complaint
alleges that Eccles Painting, Inc. (Respondent or Eccles Painting) has violated Section 8(a)(1)
and (3) of the Act by creating an impression among employees that their union activities were
under surveillance, by interrogating, and by threatening employees that they would be terminated
for their union activities and/or sympathies. The complaint further alleges that at various times

1 On June 11, 2012, Mr. Eccles, in pro se for Respondent, was served a form Letter to Pro Se
Party which informed Mr. Eccles what basic procedures he could expect for presenting evidence
at trial and suggested that Respondent should continue its efforts to retain a lawyer to represent it
in this case. The very next day, Respondent became represented by Brian Holleran, Esq., of the
Boise, Idaho, law firm of Meuleman Mollerup, LLP. On the eve of trial on June 22, 2012,
Mr. Holleran withdrew as counsel for Respondent.
2 All dates are in 2011 unless otherwise indicated.
JD(SF)-47-12
2
from November 15 through December 11, Respondent terminated Luiz Deniz, David Bazan,
Damon Danner, Aldo Gamas, Jose Alcantar Moreno, Omar Santillan, Adrian Santillan, Isaias
Lopez, Irineo Lopez, Jaime Guevara, Gustav Gallardo, and Alfredo Frias Vargas because these
employees signed the Union petition seeking representation, engaged in concerted activities, and 5
because Respondent intended to discourage employees from engaging in these pro-union
activities.
As the trial went forward to conclusion, counsel for the Acting General Counsel sought
and I grant leave to further amend the complaint to better conform to the evidence presented, 10
including the addition of the alleged act that on November 11, Sundquist acted unlawfully, when
he stood guard at a distance over the employees signing the Union petition and created the
impression that they were being surveilled. (Tr. 113, 13-15, 150, 210, 227-228, 240-241, 254,
401; GC Br. 13, fn. 11, GC Br. 16, fn. 12; GC Exh. 1(g).)
15
Applying the Board’s standard set forth in Folsom Ready Mix, Inc., 338 NLRB 1172 fn. 1
(2003), I grant this request, as the proposed amendments do not materially prejudice the
Respondent; the amendments involved new factual matters but included much of the same
evidence put forth at trial as was required to litigate the matters arising from the original
complaint and as such I find that Respondent had adequate time to properly defend the new 20
factual allegation.
Post-trial briefs were filed on August 2, 2012, by Respondent and Acting General
Counsel and have been carefully considered. On the entire record4, including my observation of
the demeanor of the witnesses and my evaluation of the reliability of their testimony, for the 25
reasons set forth below, I find that Respondent violated the Act as alleged.
Findings of Fact
I. Jurisdiction30
The Respondent is an Idaho corporation with an office and place of business in Boise,
Idaho, and with projects in Idaho and the State of Washington. The Respondent is engaged in the
painting and finishing of residential and commercial buildings. Respondent admits and I find that
during the 12-month period ending on April 1, 2012, it provided services valued in excess of 35
$50,000 and derived gross revenues in excess of $5,000. See Tr. 13; GC Exhs. 14 and 15. See
also Pioneer Concrete Co., 241 NLRB 264, 265 (1979), enfd. 637 F.2d 698 (9th Cir. 1981). I

3 For ease of reference, testimonial evidence cited here will be referred to as “Tr.”
(Transcript) followed by the page number(s). Documentary evidence is referred to either as “GC
Exh.” for a General Counsel exhibit, or “R Exh.” for a Respondent exhibit. References to post-
trial briefs shall be either “GC Br.” or “R Br.” followed by the page numbers. Citing to specific
evidence in the record is for emphasis and is not intended to preclude further evidentiary support
elsewhere in the record.
4 I hereby correct the transcript as follows: Tr. 229, LL. 16-17: “’You guys are
[indiscernible] in the future.’” should be “You guys have problems in the future”; and Tr. 229, L.
20: “list” should be “lift.”
JD(SF)-47-12
3
further find that Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. In addition, I further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act which regularly deals with employers about wages
and rates of pay, and whose employees regularly participate in union meetings and elect union 5
leadership. (Tr. 45-48; GC Exhs. 2-3.)
II. Alleged Unfair Labor Practices
A. Background10
As stated above, the Respondent is an Idaho corporation engaged in the painting and
finishing of residential and commercial buildings, and is owned by Arthur Eccles (Eccles).
Eccles first started the business in spring of 2006, and since then has worked on a number of
jobs, including projects outside of Idaho in Washington and Oregon. (Tr. 14, 287.) The present 15
action is concerned with 2 projects that occurred in the Puget Sound area of the State of
Washington beginning in 2011.
1. The PUD Project and the Wood Center Project
20
The first project that Respondent engaged in was at the Johns Prairie Operations Center
in Shelton, Washington—also known as the Mason County Public Utility (the “PUD project”).
The General Contractor at that site was Rushforth Construction, and on February 3, 2011, Eccles
Painting subcontracted to complete all painting and finishing at the job. (GC Exh. 15; Tr. 130-
31). The second project occurred in Seattle, Washington at the Seattle Central Community 25
College’s Wood Center (the “Wood Center project”). The General Contractor at that project was
Jody Miller, and on June 22, 2011, Eccles Painting subcontracted to work at that site. (GC
Exh.14). While it remains unclear when each job actually began, the record has established that
the jobs started roughly in the fall of 2011 and finished by early 2012.
30
It is important to note that at the beginning of these projects, Eccles Painting hired a sub-
tier contractor called Merino’s Fine Finishes (Merino) to complete the work at both sites. (Tr. 68,
95-96). While it appears that early on Merino may have controlled the staffing and work at the
jobs, Eccles Painting always held the official subcontract with the General Contractors on both
projects. (GC Exhs. 14-15; Tr. 95, 168). According to a number of painting employees and 35
foremen, Merino officially walked off of the jobs by early to mid-November, at which point
Eccles Painting became the sole employer for all painting employees. (Tr. 172, 308, 411-412;
GC Exh. 16.)
At each project, Eccles Painting also employed a number of foremen who were entrusted 40
with the hiring, supervision, and control of the painting employees.5 At the PUD project, Aaron
Key was the foreman, and testified without disagreement that he had the power to hire and

5 Most of the foremen testified that they were initially hired by, and worked for Merino. (Tr.
307, 397, 411). Once Merino left however, they were under the direct supervision and control of
Eccles Painting. Nevertheless, because Eccles Painting held the subcontracts for both projects at
all times, I find that these foremen were always under the ultimate control of Eccles Painting.
JD(SF)-47-12
4
discharge employees as he saw necessary. (Tr. 470-471.) He also credibly testified that on at
least one occasion Eccles had instructed him to lay off some employees. (Tr. 471.)
At the Wood Center project, Ken Sundquist (also know as “Moose” or “Ken Moose”) 5
worked as a foreman and lead supervisor from October 25 through December 6. (Tr. 133, 276,
409.) Sundquist hired Deniz to work as a painter at the Wood Center project, gave many of
Respondent’s employees their assignments, and occasionally inspected their work. Sundquist
initially reported to Eric Moreno but by early November, Sundquist reported directly to Eccles.
10
On December 16, Joe Alvarado took over as the foreman and supervisor at the Wood
Center project and continued on through early 2012.6 (Tr. 435.) Mike Lester also worked as a
foreman at the Wood Center Project for Respondent alongside Sundquist beginning in mid
November. (Tr. 276, 426.) Finally, although he did not testify, I find that Antonio Diaz (Diaz)
also worked as a foreman for Respondent at the Wood Center project. A number of Respondent’s15
employees testified that they witnessed Diaz being the boss in charge of supervising
Respondent’s employees who also assigned work and inspected their work on multiple
occasions. (Tr. 171, 202-203, 216, 238, 249, 276.)
2. Omar Rubi and Painter’s District Council 520
Omar Rubi (Rubi) is a field representative for the Union in Washington. The Union
typically represents employees who work in painting, drywall, floor covering, glazing, glass, and
maintenance. (Tr. 45.) Rubi’s job, as a field representative, is to organize nonunion workers, and,
at the time of trial, he had done this for approximately 4.5 years. (Tr. 45.) Rubi’s job includes 25
soliciting workers to see if they are interested in union representation. (Tr. 137.)
Rubi first spoke with Eccles in July. (Tr. 49.) He contacted Eccles a number of times over
the phone to discuss the benefits of being part of a union. (Tr. 50.) After his second call, the two
men agreed to meet. (Tr. 51.) During this same time, Rubi had gone out to several of the projects 30
Eccles Painting was currently working on, and spoke with the employees there about joining the
Union and assisting them with filing liens against Respondent for unpaid wages as Rubi and a
number of Respondent’s employees believed that they were not being paid the prevailing wage
rate. (Tr. 51-53.) A few days later, Rubi received a call from Eccles complaining that Rubi had
been trespassing on his jobs, and that Eccles did not want Rubi speaking to his employees about 35
the Union. Nonetheless, the two still agreed to meet on July 19. (Tr. 53-54.)
Before their July 19 meeting, however, a number of events occurred. Sometime during
the week before July 18, Rubi was present for a speakerphone conversation between Gustavo
Garcia, the owner of Citivel7, and Eccles. (Tr. 55-56.) During this conversation, Rubi believably 40
testified that Eccles stated that, “he knew that Gustavo [Garcia] was tired of that union fucker
[Rubi] that had been trespassing on his jobs and he was going to take care of the problem.” (Tr.

6 Respondent admitted and I find that both Sundquist and Alvarado were supervisors for
Respondent under Section 2(11) of the Act in November and December. Tr. 16-17.
7 Rubi testified that Eccles Painting held the subcontract for the Tyee Middle School project,
but had further subcontracted the job to another painting company called Citivel.
JD(SF)-47-12
5
57.) Rubi also overheard Eccles tell Garcia that Respondent had 3 big jobs going on that Garcia
and his painters would get to work if they met and the workers signed lien releases. (Tr. 56-57.)
Eccles further tried to convince Garcia that it would be in his and his employees’ best interests if
they would accept less money in wages than what Respondent really owed them. Id. 5
At the end of the discussion, Garcia and Eccles decided to meet on Monday, July 18 at
Tyee Middle School—one of the sites where Eccles Painting and Citivel employees were
presently working. (Tr. 58.) Citivel had recently signed a contract with the Union, however, so
Rubi decided he would attend the meeting as well. Id.10
When Rubi arrived that morning at Tyee Middle School, he stated with confidence that
he overheard Eccles telling various employees that, “I know you’re talking to that fucking union
guy [Rubi]. If you listen to him, I [Eccles] will fight you. I will get a lawyer and I will fight you
and it will take 1 or 2 years before you see any money.” (Tr. 59.) After his speech, Eccles then 15
approached Rubi and the two discussed the various liens for nonpayment of overtime and
prevailing wages that Citivel’s employees had filed against Eccles Painting. (Tr. 61.)
The next day, on July 19, Rubi and Eccles met at the Union office as planned (Tr. 61-62.)
Rubi believably recalled that Eccles was initially hostile, saying things like “My father’s a 20
millionaire; I am going to fight you, fight the Union.” (Tr. 62.) Eventually though, as the two
discussed the Union’s apprenticeship program, Eccles began to come around to the idea of the
Union, and even expressed before he left that he was interested in doing some future projects
with the Union. Id. A few days later in a phone conversation, however, Eccles conveyed to Rubi
that he was not interested in working with the Union after all. (Tr. 63).825
B. Eccles Painting Employees Sign the Union Petition
By late October 2011, Rubi learned of two new jobs that Eccles Painting was working on
in the Seattle area: the Shelton PUD project approximately 60 miles outside Seattle and the 30
Wood Center trade school project in Seattle. (Tr. 66-67.) As part of an organizing drive, Rubi
encouraged several painters he knew—Aldo Gamas, Jose Alcantar, and Luis Deniz—to apply for
work at the Wood Center project. (Tr. 70.) Eventually, on November 9, Rubi went out to the
Wood Center project to discuss the Union with Eccles Painting employees during their breaks
from work. (Tr. 71, 145, 253.) That day, Rubi parked his truck and met with the employees in a 35
parking lot across the street from the job site. (Tr. 71; GC Exhs. 5a and 5b.)

8 Rubi testified that after this last conversation, Eccles again contacted him complaining
about liens that his employees had filed against Eccles Painting. (Tr. 64). The issue of wage
claims and liens having been filed against Eccles Painting was a recurring topic at the hearing;
however, because I find that these liens have general value to show that Eccles Painting’s
employees were being unfairly underpaid for at least a portion of the wages owed by Eccles
Painting, I do not discuss the liens in detail.
JD(SF)-47-12
6
The first person that Rubi met with was Damon Danner. The two had a brief conversation
in the parking lot that morning, during Danner’s break, concerning the employees’ missed wage
payments from Eccles Painting. Danner then informed Rubi that the other employees would all
be in the parking lot during lunch that day. (Tr. 72.) 5
At lunch that day, approximately 8 or 9 employees met with Rubi in the same parking lot
area near the Bank of America branch. (Tr. 145-146, 221; GC Exhs. 5a and 5b.) Rubi told the
employees that he had heard about the missed wages payments at Eccles Painting’s projects and
that the Union could help the employees attempt to get fully paid with lien filings against the 10
Respondent. Rubi then stated that he would be back in a couple of days with a Union petition.
(Tr. 73.) Rubi later discovered that one of the employees listening to his speech that day was
Diaz—a foreman for Respondent who Rubi saw mocking what he was saying, rolling his eyes
and making insulting noises. (Tr. 73-74, 221-222.)
15
Two days later on November 11, Rubi returned with the Union petition for union
representation (the Union petition) and met again with Eccles Painting employees in the parking
lot across the street during their break. (Tr. 74-75, 225-227, 239, 250-251, 277; GC Exh. 4; GC
Exhs. 5a and 5b; GC Exh. 8.) The employees who signed the petition that day were Damon
Danner (Danner), David Bazan (Bazan), Aldo Gamas (Gamas), Luiz Deniz (Deniz), Jose 20
Alcanter Moreno (Moreno), Jaime Guevara (Guevara), Gustavo Gallardo (Gallardo), and
Alfredo Frias Vargas (Vargas). Id. A number of these employees testified that they first observed
Diaz and, soon thereafter, Sundquist watching them as they signed the petition. (Tr. 150, 210,
227-228, 240-241, 254.) Sundquist confirmed at the hearing that he saw employees meet with
Rubi and sign the Union petition. (Tr. 401.) 25
On November 17, Rubi visited the PUD project and obtained the signatures of other
Eccles Painting employees, including Omar Santillan (Omar), Adrian Santillan (Adrian), Isaias
Lopez (Isaias), and Irineo Lopez (Irineo). (Tr. 82-83, 309-310, 326; GC Exh. 4; GC Exh. 8.)
Rubi collected the signatures during the employees’ morning and lunch breaks. (Tr. 82, 310).30
The following day, November 18, Rubi and another Union field representative named
David O’Meara visited the Wood Center project and presented the petition to Sundquist inside
the premises. (Tr. 83-84, 245-246, 339.) Upon showing Sundquist the petition, Rubi asked him if
he would recognize the Union. Sundquist responded -- no, that the Union had never done 35
anything for him. (Tr. 339.) When Rubi moved the Union petition closer to Sundquist’s face,
Sundquist read the names on it. (Tr. 84-85, 339-340.)
After this brief exchange, Sundquist told Rubi and O’Meara that they should not be there,
and told them to go to the project trailer. (Tr. 86.) Inside the trailer, one of Jody Miller’s 40
superintendants was present, and after having a conversation about the payroll with Sundquist,
the superintendant asked Rubi and O’Meara to come back another time. (Tr. 87.)
On November 21 and 22, Rubi sent Eccles via certified mailed and email copies of the
signed Union petitions along with a demand for Union recognition letter and they were delivered 45
to him on November 25. (Tr. 97-100; GC Exhs. 9 and 10.)
JD(SF)-47-12
7
On November 28, Eccles telephoned Rubi and wanted to try and work things out with
Rubi and the Union because Eccles Painting had quite a bit of painting work remaining and
Eccles needed to move past his labor problems. (Tr. 106-107.) The two agreed to meet or talk in
early December to discuss further. Id. 5
On November 29, Rubi was at the Wood Center project, and met with Gamas offsite in
the parking lot during his morning break and noticed that Sundquist was watching the two meet
from approximately 30-40 feet away. (Tr. 107-108.) Later that day in the afternoon, Gamas was
fired by Eccles Painting. (Tr. 108.) 10
Rubi telephoned Eccles when he learned of Gamas’ employment termination and Rubi
told him that he could not fire people who had signed the Union petition. (Tr. 108-09.) Eccles
responded by saying that Eccles Painting was “his fucking company and that he could do
whatever the fuck he wanted.” (Tr. 109.) Eccles next accused Rubi of interfering with Eccles 15
Painting’s employees on the job during work hours which Rubi denied and the conversation
concluded with Eccles threatening to layoff the rest of the Union petition signers within the next
5 days.9 (Tr. 53-54, 109, 116-120.)
C. Eccles Painting Employees are Threatened and Fired20
1. Luiz Deniz
In the afternoon on November 11, Deniz went back to work in the basement at the Wood
Center project. (Tr. 147, 152.) According to Deniz, there were 8-12 painters at the Wood Center 25
project at this time. Prior to this job, Deniz had 2 years’ experience as a painter and 12 years’
experience as a drywall finisher in the Seattle area.
Without hesitation, Deniz credibly testified that as he was working, Sundquist and Diaz
came in and were saying to each other that they were going to fire the people who had signed the 30
Union petition. (Tr. 142.) Later that day, after the last break, Deniz also overheard Diaz and
Vargas talking about 10 feet away. He and Vargas recalled that he heard Diaz tell Vargas that
“everybody that signed the paper [the Union petition] was going to get fired.” (Tr. 153, 279.)
Diaz then approached Deniz and told him the same thing. (Tr. 154.)
35
On November 15, Deniz was painting a room in the lobby of the Wood Center, and he
estimated without hesitation that there remained approximately 4 or 5 months of work for

9 Rubi convincingly explained that because there were already other trades represented by his
union at the Wood Center and PUD projects, Rubi was properly onsite at various times observing
working conditions for the other trades people such as the tapers, glass contractors, glazers,
mudders, and people laying the floor. Tr. 118-120, 129-130. While Rubi admitted being
instructed by someone with general contractor Jody Miller not to bother Eccles Painting workers
while working at the Wood Center project, Rubi credibly denied bothering or pulling painters off
scaffolding to solicit their representation at Wood Center and PUD projects. Tr. 116-121, 132-
133. At all relevant times in November and December, Eccles was in Idaho and not onsite at
these projects.
JD(SF)-47-12
8
completion at that time. (Tr. 154.) That afternoon, Sundquist asked the employees to sign a paper
that said Eccles Painting had paid them a check—despite no such payment actually occurring.
(Tr. 154-155.) Deniz refused to sign the form, however, because he claimed he did not
understand what it was. Id. Afterwards, Deniz saw Rubi and O’Meara come to the site and speak 5
with Sundquist. Approximately 5 to 20 minutes after this, Sundquist approached Deniz and told
him that he was fired because he was working slowly and because he had signed the Union
petition. (Tr. 155-156.) Prior to this day, Sundquist had never told Deniz that he was doing bad
work, and had said that his work was fine. (Tr. 156.)
10
2. Damon Danner
Danner worked initially at the PUD project and then transferred over to the Wood Center
project on November 2. (Tr. 169-170.) At both job sites he encountered problems with delayed
and underpaid wage payments from Eccles Painting. (Tr. 172.) Both Aaron Key and, later,15
Sundquist required Danner to sign an “unconditional waiver” before he could receive his
paychecks from Respondent. Danner signed the waivers with a note that the signings were
“under duress” as he believed it was “ridiculous” to be forced to sign a waiver in order to receive
his earned wages. Eventually, Danner filed wage claim liens against Eccles Painting sometime in
early to mid-November for his unpaid wages at the two projects. (Tr. 180; GC Exhs. 6a, 6b, and 20
7.) Danner described the paychecks he received from Respondent as being non-typical as there
were no taxes or FICA withheld and he also did not receive proper overtime pay so that in all
Danner estimated that Eccles Painting would pay him less than half of the wages owed to him for
hours worked.
25
On November 18, Danner worked a full day, and as he was leaving, Sundquist was
passing out paychecks. Danner waited for his check but never received one, and instead was
handed a piece of paper with Eccles’ phone number on it. Sundquist told Danner, “You are being
laid off. Art [Eccles] wants you to call him.” (Tr. 181.) Danner testified that he was
“flabbergasted” by this because he believed he was the most experienced painter on the job and 30
estimated that there remained at least 6 weeks work with approximately 15 painters on the job
when Danner was laid off.10 (Tr. 168-169, 181.)
As Danner was walking back to his car, he saw Rubi and told him that he had just been
laid off. Danner then called Eccles with Rubi still present. (Tr. 182.) During the conversation, 35
Eccles told Danner that he was being laid off because work was getting slow. Danner disagreed
with Eccles and told him his explanation of slowing work was “BS” and further stated to Eccles
that he believed Eccles was laying him off instead because Danner had signed the Union petition
against Eccles Painting along with liens for unpaid wages. (Tr. 182-183.)
40
In response, Danner convincingly recalled that Eccles told him: “That is what you
fucking get for listening to the fucking Union. The Union doesn’t give a shit about you.” (Tr.
183.)
45

10 Danner had worked as a lead painter with Respondent, understood and spoke English, and
performed the specialized skills of painting air ducts, pipes while using a paint sprayer.
JD(SF)-47-12
9
By this point, Danner switched the conversation to speakerphone so that Rubi could hear.
Rubi confirmed this conversation in detail during his own testimony. See Tr. 90-91. When
Danner asked when he would get the money that Eccles Painting owed him, Eccles replied, “You
get your money when the lien goes away. Might be a couple of years.” (Tr. 183.) Both Rubi and 5
Danner testified that at this point Rubi got on the phone and told Eccles that his workers want
union representation. (Tr. 90, 184.)
Eccles responded to Rubi saying -- “Fuck you . . . I fired them for fucking listening to
you [Rubi] and filing liens you Motherfucker. All you do is follow me around and fuck with me. 10
You fucking trespass on my jobs, you Motherfucker.” (Tr. 91).
Next, Danner told Eccles: “You laid David [Bazan] and myself off … [and] I don’t get
it…I was one of the more experienced guys [painters] …” and Bazan was spraying hollow metal
door jambs which is very difficult and requires much experience using a sprayer with a 15
specialized technique that not every painter has. (Tr. 183-184.) Danner credibly recollected that
Eccles’ immediate response to this was: “You guys shouldn’t have listened to the damn Union.”
(Tr. 184.)
Finally, Danner recalled that Rubi got onto the speakerphone at this point with Eccles and 20
asked him once more if Eccles Painting accepted the Union as a representative of the painter
employees at the Wood Center project and Eccles responded with numerous profanities along
with his statement that Eccles Painting was rejecting the Union’s representation. (Tr. 184.)
On the morning of November 22, Danner engaged in picketing at the Wood Center 25
project with Rubi, Bazan, and Deniz. (Tr. 185-186, 229-230, 257; GC Exh. 5a.) Diaz saw the
picketers and instructed another supervisor’s brother to tell the picketer to “get out of here …
This mother fucker [Diaz will] kick his ass.” (Tr. 230.)
Just prior to Thanksgiving, Danner called Eccles and asked when he was going to get the30
wages owed to him by Eccles Painting? (Tr. 192.) Eccles responded once again that it would not
be until the liens went away. Id. At this point the conversation got more heated and Danner told
Eccles, “I am going to get my money pretty soon. I know where you live … [and I will] kick
your ass.” (Tr. 110-111, 193.) Eccles then asked if Danner was threatening him, and told Danner
he was going to call the police. Danner replied that he had been to prison before and that it didn’t 35
scare him. Id. At that point, Danner hung up.
Later sometime in December, Eccles recalled his earlier conversation with Danner and
mentioned it to Rubi. (Tr. 110-111.) Eccles explained to Rubi the reason behind Danner’s threat
had to do with the money Eccles Painting owed Danner. Id. Eccles also accused Rubi of 40
vandalizing the Wood Center jobsite which Rubi convincingly denied. (Tr. 111.)
On December 5, Eccles contacted Danner offering him work at the Wood Center project.
(Tr. 194.) Danner laughed at Eccles and told him that he would work for him when Respondent
paid him the back wages it owed him. Eccles responded that he would get his money when the 45
liens went away. Id.
JD(SF)-47-12
10
3. David Bazan
David Bazan had 6.5 years painting experience going into his work for Respondent at the
Wood Center project. Respondent supplied Bazan with painting sprayer and other equipment for 5
the job. He testified that the week after he signed the Union petition on November 11, he was
working in the basement of the Wood Center project when he overheard Sundquist and Diaz
talking in English. (Tr. 211-212.) Specifically, he stated with confidence and no hesitation that
Diaz said to Sundquist, “If those guys, they put their name on the petition, you fire them. They
go home.” Sundquist then agreed by responding: “Yeah, those guys [who sign the Union petition 10
will be] fired.” (Tr. 212.)
On November 18, just after noon, and shortly after Rubi and O’Meara had shown
Sundquist the Union petition, Sundquist came into the room where Bazan was working on a
ladder and said, “David [Bazan], you are fired.” (Tr. 213.) Bazan then came down from the 15
ladder and asked Sundquist “why?” The two then went outside and Sundquist told Bazan, “You
put your signature on the [Union] petition, so you are fired. Go home.” Id. Afterwards, Bazan
contacted Rubi on the phone. Id. When Bazan left the Wood Center project on November 18, he
estimated that there remained 2 to 3 months painting work at the site.
20
4. Jose Alcantar Moreno
Moreno had 16 years painting experience before he worked at the Wood Center project as
a painter for Respondent from approximately the first week of November until November 29.
Moreno was hired with Gamas by Respondent through a referral by Rubi for Gamas and Moreno 25
to see Sundquist who told them to call Eccles directly for a job. (Tr. 218-219.) Eccles told Gamas
that he and Moreno should see Sundquist for work with Respondent. (Tr. 219.)
Moreno noted that when he started in early November there were 6 or 7 other painters
working the Wood Center project with him and that number increased to 8-10 painters in week 2 30
and further to 13-14 painters by the third week of November. (Tr. 220.) When he was laid off on
November 29, Moreno estimated that there were 3 weeks to one month left to finish the project.
(Tr. 233.)
Moreno recalled a conversation Sundquist had with Gamas and him a few days after he 35
signed the Union petition. (Tr. 229.) Sundquist approached Moreno when he was masking in
some pipes by the ceiling with Gamas and Sundquist asked them to come down from the scissor
lift. Id. Next, Sundquist asked them if they were for the union or union members. Gamas denied
they were, Moreno stayed quiet, and Sundquist responded that he had seen both of their names
on the Union petition and if they signed the Union petition or were union members, they will 40
have problems in the future. Id.
On November 29, Moreno had a problem closing his car trunk and since that is where he
kept his tools, he did not want to leave the truck open. (Tr. 230-231.) Moreno discussed with and
showed Sundquist his car trunk problem and asked if he could miss work that day to take his car 45
to a mechanic to fix the trunk problem. Id. Sundquist responded to Moreno’s question by
agreeing that it was fine for Moreno to take the day off to fix his car problem and for Moreno to
come back early the next day to resume his painting work at Respondent. Id. Moreno had his car
JD(SF)-47-12
11
repaired on November 29 and at 7 a.m. on November 30; Moreno arrived at work at met with
Sundquist for his day’s assignment. (Tr. 231-233; GC Exh. 13.) Sundquist responded: “What?
You quit yesterday. I can’t give you any more work. I don’t have anything to do with you. Get
out of here.” (Tr. 232.) 5
5. Aldo Gamas
Gamas had 10 years of experience as a painter before he started work at Respondent’s
Wood Center project. (Tr. 236.) He was a journeyman painter and a member of the Union. Id. 10
Gamas was hired by Eccles and Sundquist in early November with Moreno in the manner
described above by Moreno.
A few days after signing the Union petition at the Wood Center project, Gamas was
approached by Sundquist while working. (Tr. 341.) Gamas testified that Sundquist told him that 15
he was going to be in trouble if he signed the Union petition. Sundquist then left. Id.
On November 29, at around 3 in the afternoon, Sundquist again approached Gamas while
he was working, and this time told him that he was being laid off. (Tr. 242.) Sundquist said
specifically, “Thank you for your service. We don’t need you anymore.” (Tr. 107, 242-243.) 20
When asked for an estimate at the hearing of how much work was left to be done as of
November 29, Gamas convincingly estimated that more than half of the painting remained to be
completed that included many walls and almost all of the school buildings’ ceilings as well as a
lot of wood and stairwells. (Tr. 243.)
25
6. Gustav Gallardo and Jaime Guevara
Gallardo, another painter who had signed the Union petition, worked for Respondent as a
painter at the Wood Center project from November 7 through December 15 when he was fired
by Lester who had replaced Sundquist as lead foreman and supervisor for Eccles Painting. (Tr. 30
248.) When Gallardo started in November, he estimated that there were between 14-18 painters
at the Wood Center project. (Tr. 249.) Sundquist and Diaz had complimented Gallardo on the
quality of his painting work once or twice before Sundquist left the job. (Tr. 264.) Sundquist,
Diaz, and Lester never complained about the quality of Gallardo’s work at the Wood Center
project. Id. 35
Gallardo had 10 years painting experience before coming to work for Respondent. (Tr.
263.) While on the job at Wood Center, Diaz would occasionally talk to Gallardo and tell him
things that Diaz and Sundquist talked about such as who the two of them would lay off the job.
(Tr. 250.) Gallardo recalled that Diaz warned him on approximately November 9 not to sign the 40
Union petition because those workers who sign would be fired and without a job. (Tr. 254.)
Gallardo and Vargas met with Sundquist and Diaz approximately 2 days after signing the
Union petition and Diaz asked them both whether they had signed the Union petition. (Tr. 255.)
Gallardo admitted signing the petition and Diaz responded by telling Gallardo that he would be 45
fired by Eccles Painting. Id. Vargas denied signing the Union petition though Gallardo knew he
was lying because he saw Vargas sign the same petition Gallardo signed on November 11. (Tr.
255-256.)
JD(SF)-47-12
12
About 2-3 weeks into the job, Gallardo and others at the Wood Center project
complained to Sundquist that they had not been paid wages on time by Eccles Painting. (Tr.
256.) Sundquist responded by telling the workers that Eccles Painting’s paychecks come in late.
Id. 5
Gallardo was unexpectedly fired by Lester and Diaz at the same time on December 15 as
Vargas and Guevara. (Tr. 258-259, 281-282.) The group went to the worksite trailer of the
general contractor Jody Miller. Lester explained that the three employees were fired for
complaining too much about not being paid to Eccles Painting. (Tr. 260-261, 282.) At the time of 10
their layoffs, Gallardo estimated that approximately 30 percent to 40 percent of the painting
work remained undone at the project. Id. As they were leaving the worksite, Gallardo and Vargas
noticed that Respondent hired 2 new painters at the Wood Center project, one of them was Diaz’
son and another painter Gallardo recalled by the name was Luciano. (Tr. 261-263, 283.)
15
In January 2012, Joe Alvarado called Gallardo to see if he would return to work at the
Wood Center project. (Tr. 265-266.) When Gallardo returned to the project, he noted that there
were painters on the job including Lester, Alvarado, Diaz, Diaz’ son, Lucian, Guevara, Vargas,
and some painters Gallardo had never seen before. (Tr. 266-267, 283-284.)
20
Gallardo only worked 2 days in January 2012 when Diaz told him that Diaz had spoken
to Eccles and while Eccles admitted owing Gallardo a lot of money for unpaid hours worked
before January 2012, Eccles Painting was not going to pay the wages owed to Gallardo. (Tr.
268.) The last payment that Gallardo received from Eccles Painting was in early December and
that Eccles Painting still owed unpaid wages to Gallardo for work performed in 2011. Diaz 25
concluded by telling Gallardo that Eccles told him to tell Gallardo that if Gallardo wanted to
work the job in January 2012, he could but without being paid for his services. Id. Gallardo
responded to Diaz by telling him that he would leave under those conditions. Id.
Gallardo estimated that when he left the job in January 2012, there was approximately 20 30
percent of the work remaining. Gallardo went back to the site twice later and both times
Alvarado told Gallardo that there was no paycheck for Gallardo from Eccles Painting. (Tr. 269-
270.) Soon thereafter, the Union filed a wage claim for Gallardo against Eccles Painting. (Tr.
270.)
7. Alfredo Frias Vargas 35
Vargas confirmed much of Gallardo’s testimony as to events that occurred to him at the
Wood Center project in November through January 2012. Before working for the Respondent,
Vargas had been painting for 20 years in Washington. (Tr. 274.) He first began painting for the
Respondent on November 3 at the Wood Center project and worked there until he was fired on 40
December 15. (Tr. 274-275, 281.) Vargas recalled that when he first started working the Wood
Center project, he and Deniz were the first 2 painters on the job. (Tr. 276.)
Vargas remembered overhearing Sundquist and Diaz talking at the Wood Center project
first floor at approximately 2 p.m. one day in November and Sundquist saying that if the painter 45
employees want to sign the Union petition, they know that what will happen is that they will be
JD(SF)-47-12
13
fired. (Tr. 279-280.) In late November or early December, Vargas told Diaz that he had signed
the Union petition. (Tr. 280-281.)
8. Omar Santillan, Adrian Santillan, Isaias Lopez, and Irineo Lopez5
Omar and his brother Adrian worked at the PUD project first for Merino beginning on
September 20 through the middle of November and then for Eccles Painting until December 7.
(Tr. 306-308, 317-318, 322.) The Lopez brothers, Isaias and Irineo worked the PUD project from
the beginning of October also through December 7. (Tr. 311, 322.) Before this work, Omar had 4 10
years of experience as a painter and Adrian had 2 years of experience. (Tr. 307, 317.)
On or about November 29, Adrian called Diaz who Omar and Adrian knew from working
together at the PUD project before Diaz left to work the Wood Center project for the
Respondent. (Tr. 320-321.) Adrian called Diaz to see if he was receiving paychecks from Eccles 15
Painting on a timely basis because the Santillans were not receiving their correct wages for their
work at PUD. (Tr. 321-322.)
Adrian also told Diaz not to speak badly about the union because it could file charges
against him. Id. Diaz responded to Adrian and said “that jerk [Rubi] won’t do anything to me.” 20
(Tr. 322.) Later in the conversation, Diaz told Adrian that “they [Diaz and Sundquist] had spilled
some paint inside the building [at Wood Center] and that they had broken a propane gas line …”
in an attempt to make it look like Rubi and the union members who signed the Union petition
were responsible for vandalism so they could be fired by Eccles Painting. Id.
25
On December 7, Omar had a conversation in English with his project manager in charge
at the PUD project, Aaron Key (Key), at approximately 8 a.m. (Tr. 308, 310-311.) Key did not
speak Spanish. (Tr. 315.) Key told Omar that he had to fire 4 painters that day and fired Omar,
Adrian, Isaias, and Irineo. (Tr. 310-311, 313-315.) Adrian recalled overhearing the same
conversation between Key and Omar and remembered hearing Key tell Omar that Eccles had 30
called Key earlier that morning and gave Key the names of 4 painters “that need to leave” –
Omar, Adrian, Isaias and Irineo. (Tr. 323, 325, 471.) Key did not really understand why Eccles
was forcing Key to fire the 4 especially since they were doing a really good job at the project. Id.
At the end of the day on December 7 in the parking lot, Key told Omar that he really 35
hated to fire the brothers and that Key really appreciated their hard work at the PUD project. (Tr.
312, 323-324.) Key further told Omar and Adrian “You guys are hard workers but I have to do it.
I just follow orders from Mr. Eccles.” Id.
Omar asked Key if he knew why they were being fired and Omar asked Key if the firing 40
had anything to do with their signing the Union petition. (Tr. 312, 323-324.) Omar and Adrian
believed that Key was surprised and that he did not know they had signed the Union petition. Id.
Key responded to Omar and Adrian and said: “maybe … or probably … that’s the reason you
guys get fired because I receive orders from Mr. Eccles this morning. I got to fire you and your
brother and the other two guys [Isaias and Irineo].” Id. Key concluded by telling Omar and 45
Adrian: “Maybe next week, all of us going to get fired because Eccles is going to bring more
guys to get done the job.” Id.
JD(SF)-47-12
14
Omar and Adrian noted that 4 or 5 new painters arrived on the PUD project
approximately one week before they were fired and remained on the project through the
December 7 firings. (Tr. 312-313, 324.) Adrian estimated that there were 15 painters at the
PUD project when he and his brother left on December 7. (Tr. 324-325.)5
Analysis
A. Credibility10
My credibility resolutions have been formed by my consideration of a witness’
opportunity to be familiar with the subjects covered by the testimony given; established or
admitted facts; the impact of bias on the witness’ testimony; the quality of the witness’
recollection; testimonial consistency; the presence or absence of corroboration; the strength of 15
rebuttal evidence, if any; the weight of the evidence; and witness demeanor while testifying.
More detailed discussions of specific credibility resolutions appear in those situations that I
perceived to be of particular significance.
The testimony concerning the material events in 2011 and the Respondent’s reasons for 20
terminating the employment of 12 of its employees contain sharp conflicts. Evidence
contradicting the findings, particularly testimony from Eccles, Sundquist, and Lester, has been
considered but has not been credited except to the extent it is consistent with more reliable
witness testimony.
25
Danner was most credible when he explained that he and Bazan were very good painters
with specialized painting skills, much experience, and leadership qualities who would not be
expected for layoff until the very last moment but for their signing the Union petition. Also,
Danner, Bazan, Gamas, Gallardo, Vargas, and Moreno were believable and confirmed Rubi’s
testimony that Rubi did not solicit painters while they were working on the job and Rubi did not 30
take painters off the job at any time or interfere with painters while working. I give substantial
weight to the consistent testimony from the numerous employees here that their signing the
Union petition directly resulted in Respondent firing them. The Santillans were also very
credible and testified effortlessly and with confidence that they were also very good painters who
Key did not want to let go but for Eccles’ specific instructions to fire them despite there being 35
more work and Respondent’s hiring of 3-4 new painters just prior to the December 7 firings of
these 4 painters who had signed the Union petition.
No reliable evidence was ever presented that Rubi was trespassing and disruptive on
Respondent’s Wood Center or PUD jobs. (Tr. 342-344.) Rubi was believable when he denied 40
causing any disruption at the Wood Center or PUD jobs. (Tr. 53-54, 109, 116-120, 485.) He also
convinced me that he had a legitimate right to be onsite due to his showing Sundquist the signed
Union petition with Mr. O’Meara on one occasion and the key fact that Rubi was there to
observe other union crafts and monitor safety standards as the Union represented other
companies (Colchuck Glass) and there were other crafts (tapers, drywallers, mudders, glazers, 45
glass company.) besides the painters at both jobs. (Tr. 118-119, 341.)
JD(SF)-47-12
15
Also, Eccles was not present onsite in November and December as he managed his
company’s jobs in the Puget Sound area in the State of Washington from his corporate
headquarters in Boise, Idaho. In addition, Sundquist recalled a couple of times he thought Rubi
was interfering with the painters during work hours when, in fact, I find that one time was when 5
the Union petition was being signed offsite in the parking lot during lunch on November 11 and
another time Rubi was speaking to men while on break. (Tr. 150, 210, 227-228, 240-241, 254,
418.) Lester did not recognize Rubi and I find him to be biased in favor of the Respondent as he
was working for Eccles at the time of trial. Consequently, I give little weight to Lester’s
testimony as to Rubi’s presence at the Wood Center job as it is biased and unreliable. (Tr. 429-10
432.) Consequently, Eccles was forced to rely on the less reliable second-hand views of his
biased anti-union foremen and supervisors who openly admitted they did want a union at their
projects and would and did fire anyone who signed the Union petition.
Eccles was also not credible or put forward evidence that did not help his defense here.15
He firmly held the unreasonable belief that the business risk that he and Eccles Painting took on
under various painting contracts, including projects at PUD and Wood Center, was shared
equally with his employees. Therefore, according to Eccles, if Eccles Painting ran into financial
difficulties, timely payment of full wages would be delayed indefinitely and his employees
would simply just have to wait and see if he could work the problems out before they would 20
receive their proper wages and benefits including overtime. I also do not believe that Eccles’
position that delayed payments to his company alone caused a delay in his employees being paid
their proper wages. Instead, as referenced above, Respondent delayed payments to various
employees primarily because of their union activities including the fact that they signed the
Union petition. Wage payments were also unlawfully delayed to get them to release their wage 25
liens ahead of full wage payments. As a result, I find that all of Respondent’s evidence of events
taking place in 2012 after the termination of the 12 employees is irrelevant. See, i.e. Tr. 361-392;
R Exhs. R0-R14, R22-29, and R48-49.11
In addition, Eccles’ demeanor at trial and in a pre-trial conference call with Eccles, his 30
lawyer, and others, made it apparent that he did not like Rubi and often used profanities directed
at Rubi though, incredibly, Eccles denied this. (Tr. 112.) Eccles did not come forward with
reliable testimony from Garcia or any other witness that backed Eccles’ version of the facts.
Sundquist was credible when he admitted laying off several of the employees involved in 35
this case but his explanation for the layoffs was very vague and non-believable. (Tr. 406.) For
example, he put forth a variety of reasons for some layoffs which are contradicted by the vast
majority of other witnesses who credibly explained that much of the work remained unfinished
through the middle of December and that Respondent was still hiring new workers throughout
this time. Sundquist failed to provide justifiable reasons for his “layoff[s]” of Deniz, Bazan, 40

11 If a compliance case follows, Eccles also did not understand that a partial wage payment
did not take away Respondent’s unlawful conduct for failing to pay back wages when a full
payment at the prevailing wage rate including overtime plus interest was necessary to make the
terminated employee whole. See, i.e. Tr. 486; R Exhs. R15-R21.
JD(SF)-47-12
16
Danner, Moreno, or Gamas. As a result, I give little weight to his testimony. In addition, at trial
he appeared disinterested and generally he did not have specific memory of key events in
November or December. As a result, I discredit his occasional recall for events favorable to
Respondent and in direct conflict with the consistent testimony from practically all of the fired 5
employees as to anti-union statements attributed to Sundquist, Diaz, and Eccles. These non-
credible statements by Sundquist include his statements that he was never instructed by Eccles to
lay off workers because they signed the Union petition. Again, this is in direct conflict with the
overwhelmingly consistent and more credible testimony from the terminated workers and
Sundquist’s own admissions as to his watching the employees in the parking lot on November 11 10
and his reading the names of the employees who signed the Union petition. It is also in conflict
with Diaz’ statements to him and the overall company anti-union animus attributed to numerous
statements from Eccles, Sundquist, Diaz, Lester, and Alvarado. Only Key was surprised by
hearing about the signed Union petition and Eccles’ instruction to terminate the hard-working
Santillan and Lopez brothers just after the arrival of newly hired workers. 15
Key, however, was not credible when he denied that any laid-off or fired employees at
the PUD project ever mentioned a union petition as he laid them off or fired them. This denial is
in direct contradiction to the very believable testimony from Omar and Adrian Santillon who
convincingly recalled that Key seemed surprised when Omar told him that they had signed the 20
Union petition in relation to Eccles’ instruction for Key to fire them despite the fact that work
remained to be done at the project and these were very good workers. Key credibly
acknowledged that the real reason for their firings might or probably related to their signing the
Union petition. (Tr. 312, 323-24.)
25
B. Supervisory or Agent Status of Sundquist, Diaz, Alvarado, Lester, and Key
1. Sundquist, Diaz, Lester, Key, and Alvarado are supervisors of Respondent
Respondent readily admits and I find that Sundquist and Alvarado were Respondent’s 30
supervisors at all material times within the meaning of Section 2(11) of the Act, respectively.
Respondent challenges, however, the supervisor status for Diaz and Lester.
Under Section 2(11) of the Act a supervisor is any person:
35
Having authority, in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or effectively to
recommend such action, if such authority is not a merely routine or clerical
nature, but requires the use of independent judgment.40
Each of these criteria need not be satisfied for an employee to be classified as supervisor
under Section 2(11).12 However, to be classified as a supervisor the employee must (1) have
authority, (2) to use independent judgment (3) in performing such supervisory functions, and (4)

12 National Welders Supply Co., 129 NLRB 514 (1960). Moreover, the Supreme Court has
suggested that an employee may be classified as a supervisor if he meets any one of the 12
criteria. NLRB v. Yeshiva Univ., 444 U.S. 672 (1980).
JD(SF)-47-12
17
in the interest of management.13 However, making routine assignments without the use of
independent judgment has been found to be insufficient to meet the requirements of a statutory
supervisor.14
5
Diaz fits several of the Act’s enumerated criteria including using independent judgment
in hiring, training, and assigning and directing their work. The preponderance of evidence shows
that Diaz, as one of the only Spanish speaking managers of Respondent, provided necessary
management and supervisory skills to Respondent. I find that Diaz assigned the work at the PUD
and the Wood Center projects, communicated with many of the Spanish speaking employees. 10
Diaz also reviewed the work of Respondent’s employees, inspected the work and decided
whether the work needed correction or to be re-done. Moreover, painters were required to follow
Diaz’ assignments under threat of discipline or termination.
Diaz reported directly to Sundquist, the lead supervisor, and the 2 were the primary 15
supervisors at the Wood Center project until Sundquist left on December 6 and was replaced
with Lester and then Alvarado.
In addition to the primary supervisory status criteria, Diaz also meets many of the
secondary criteria the Board has developed including employees’ perception that Diaz was the 20
“boss.” See Ken-Crest Services, 335 NLRB 777, 779 (2001). Many of the painters testified that
they believed Diaz to be a supervisor and treated him as such. It was clear from Diaz’
relationship with Sundquist that Diaz was in charge and had authority over the Spanish speaking
painters.
25
Lester also fit a key factor for supervisor status under the Act including using
independent judgment in firing Gallardo, Guevara, and Vargas on December 15. (Tr. 248.) The
preponderance of evidence shows that Lester provided necessary management and supervisory
skills to Respondent. I find that Lester took Sundquist’s place with Respondent as foreman and
supervisor with authority to fire workers as he did on December 15. Lester reported directly to 30
Eccles, the company’s owner in Idaho.
Key also fit a key factor for supervisor status under the Act as he was Respondent’s
foreman at the PUD project and he testified that he had the authority to hire, fire, and lay off
employees. (Tr. 471.)35
Despite Respondent’s claims that Diaz and Lester did not have any authority over the
painter employees, it is clear that they each did have actual control and authority over these
employees and that they each directly supervised them. The record is rife with examples of how
Diaz exerted that control. Also there is no dispute that Lester followed Sundquist as foreman and 40
supervisor and fired three employees on December 15. As such, I find that Diaz and Lester are
each supervisors within the meaning of Section 2(11) because they were each clearly vested with
authority to hire and train Eccles Painting employees, assign and direct their work, and, along
with Eccles, Sundquist, and Alvarado, discipline and fire Respondent’s employees.
45

13 NLRB v. Healthcare & Ret. Corp of Am., 511 U.S. 571 (1994).
14 Stanford Hotel, 344 NLRB 558 (2005).
JD(SF)-47-12
18
2. Diaz and Key are agents of Respondent
Section 2(13) of the Act creates the test for whether an employee is an agent of the
employer:5
In determining whether any person is acting as an “agent” of another person so as
to make such other person responsible for his acts, the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not
be controlling.10
The Board applies common law principles of agency to determine whether an individual
possesses actual or apparent authority to act for an employer, and the burden of proving the
agency relationship is on the party who asserts its existence. See Pan-Oston Co., 336 NLRB
305, 305–306 (2001).15 In Zimmerman Plumbing & Heating Co., 325 NLRB 106, 106 (1997),1615
the Board stated that “it is well established that the apparent authority results from a
manifestation by the principal to a third party that creates a reasonable basis for that party to
believe that the principal has authorized the alleged agent to perform the acts in question.”17
Moreover, under the common law of agency, a principal may be responsible for its 20
agent’s actions if the agent reasonably believed from the principal’s manifestations to the agent
that the principal wished the agent to undertake those actions. See Restatement 2d, Agency, § 33.
Id.
Applying these principles here, it is manifestly clear that Diaz was the Respondent’s 25
agent. At no time did Diaz act on his own as employer of the Eccles Painting workers. Once
Eccles Painting took over from subcontractor Moreno in early to mid-November, Diaz became
Eccles Painting’s surrogate as its only Spanish speaking foreman. The Respondent used Diaz to
relay owner Eccles and lead supervisor Sundquist’s directions to the employees. Diaz would
meet Sundquist the start of each workday at 7 a.m. to discuss and determine assignments for the 30

15 Contra Ready Mix, Inc., 337 NLRB 1189 (2002) (employee was not an agent where he was
temporarily assigned the duties of a field representative and even though he made representations
that he had authority over the other workers there was no evidence that the employer conferred
such authority on him or “cloaked him with apparent authority to act as its agent”).
16 In Zimmerman, the Board found both apparent and actual authority where foremen “acted
as the conduits for relaying and enforcing the Respondent’s decisions, directions, policies and
views . . . participated in monthly management meetings . . . were privy to the Respondent’s
policies and objectives . . . [and therefore] it was reasonable for the rank-and-file employees to
believe that these foremen were reflecting company policy and acting for management when
they engaged in the conduct found to be unlawful.” 325 NLRB at 106.
17 See also Waterbed World, 286 NLRB 425, 426–427 (1987) (the test for whether
statements or actions taken by individuals are attributable to the employer is whether the
employees “would reasonably believe that the employee in question [alleged agent] was
reflecting company policy and speaking and acting for management”); see also Southern Bag
Corp., 315 NLRB 725 (1994).
JD(SF)-47-12
19
day. Diaz would then communicate these assignment to the employees and direct their work,
review it, and, if necessary, ask them to re-do the painting.
Diaz also began relaying messages about how Eccles Painting intended to terminate 5
workers who had signed the Union petition. As such, Diaz acted as a conduit between the
employees and management—Eccles and Sundquist. Moreover, The Respondent’s employees
reasonably believed that Diaz was acting for management as Vargas forcefully recalled that
employees were fired when Diaz was unsatisfied with their work. (Tr. 275.) Diaz was directed in
what to tell the painters and is an agent of Respondent within the meaning of Section 2(13) of the 10
Act.
Applying these same principles to Key, I further find that he was also the Respondent’s
agent. Specifically with regard to the December 7 firings of the Santillan and Lopez brothers,
Key became Eccles Painting’s surrogate as he directly followed Eccles’ order to fire the 4 15
employees without asking any questions and despite Key’s opinion that the Santillan brothers, in
particular, were very good workers. The Respondent used Key to relay owner Eccles’ directions
to these 4 employees. Under these circumstances, I find that the Respondent placed Key in a
position where employees such as the Santillan and Lopez brothers and others would reasonably
believe he was speaking and acting on the Respondent’s and/or Eccles’ behalf. As such, Key is 20
also an agent of Respondent within the meaning of Section 2(13) of the Act.
C. Independent 8(a)(1) Allegations
1. Surveillance25
Acting General Counsel alleges under paragraphs 6(a), 8, and 9 of the complaint that on
November 11, the Respondent unlawfully surveilled Eccles Painting workers who signed the
Union petition. I find that Eccles Painting engaged in unlawful surveillance. On November 11,
Sundquist and Diaz observed a number of employees offsite as they signed the Union petition 30
with Rubi.
An employer violates Section 8(a)(1), when it “surveils employees engaged in Section 7
activity by observing them in a way that is ‘out of the ordinary’ and therefore coercive.” Aladdin
Gaming LLC, 345 NLRB 585, 586 (2005). Indicia of coerciveness, include the “duration of the 35
observation, the employer’s distance from its employees while observing them, and whether the
employer engaged in other coercive behavior during its observation.” Id.
Both Diaz and Sundquist observed union organizer Rubi present the Union petition to
Eccles Painting employees offsite in an adjacent parking lot on November 11 for their signatures. 40
Their observations lasted several minutes, took place from a close vantage point, was out of the
ordinary, and likely dissuaded several employees from interacting with Rubi, out of fear of
reprisal. Moreno convincingly described Sundquist watching the group from about a half block
away when the Union petition was signed as acting “nervous and he [Sundquist] was looking at
us in a very demanding way, and I thought he seemed nervous because he was smoking and 45
smoking.” (Tr. 210, 227-228.) Moreover, Deniz and Gamas credibly feared for their jobs and
intentionally kept their backs to Sundquist so they would not be seen signing the Union petition.
(Tr. 150-151, 240-241.)
JD(SF)-47-12
20
The Respondent does not contend that any violence or invasion of its property occurred
or was threatened, and it therefore had no legitimate interest in observing the group sign their
Union petition in the offsite parking lot adjacent to the Wood Center project. Consequently, I
find that Diaz and Sundquist unlawfully surveilled by observing the employees while they signed 5
the Union petition on November 11 and violated Section 8(a)(1) of the Act.
2. Impression of Surveillance
As stated above, I grant Acting General Counsel request to amend her complaint to add 10
another alleged unlawful act attributable to Respondent under Section 8(a)(1) of the Act for
creating the impression of surveillance. (GC Br. At 13, fn. 11.) Specifically, Acting General
Counsel alleges that Sundquist’s November 11 surveillance, together with the threat that he made
later that day that he would fire those workers who signed the Union petition created an
impression of surveillance. See United Charter Service, 306 NLRB No. 31 at 150, 151 (1992).15
In determining whether an employer has unlawfully created the impression of
surveillance of employees’ union activities, the test is whether under all the relevant
circumstances, reasonable employees would assume from the statement in question that their
union or other protected activities had been placed under surveillance. Frontier Telephone of 20
Rochester, Inc., 344 NLRB 1270, 1276 (2005). The essential focus has always been on the
reasonableness of the employees’ assumption that the employer was monitoring their union or
protected activities. Id. As with all conduct alleged to violate Section 8(a)(1), the critical element
of reasonableness is analyzed under an objective standard. Id.
25
I find that the Eccles Painting workers’ activities at lunch on November 11 were not
conducted openly as they occurred offsite in the parking lot adjacent to the Wood Center project.
(GC Exhs. 5(a) and 5(b).) Sundquist made his first comment that he would fire the people who
signed the Union petition later that same day before Rubi had shown him the signed Union
petition and the Respondent did not explain to the workers or put forth any evidence at trial that 30
explained that any information about who actually signed the Union petition was voluntarily
given or that Respondent had lawfully obtained a copy of the signed Union petition before
November 18 when Rubi presented it to Sundquist. Therefore, Sundquist’s statement on
November 11 that those workers who signed the Union petition would be fired reasonably
suggested to the workers that the Respondent was closely monitoring the degree and extent of 35
their organizing efforts and activities. See Emerson Electric Co., 287 NLRB 1065 (1988).
Consequently, I find that Sundquist’s statement on November 11 created the impression that the
workers’ activities were under surveillance and violated Section 8(a)(1) of the Act.
3. Interrogation and Threats40
Acting General Counsel alleges under paragraphs 6(b), 6(c), 6(e), 6(f), 6(g), 8, and 9 of
the complaint that the Respondent unlawfully interrogated employees about whether they had
signed the Union petition, and, later, unlawfully threatened Eccles Painting workers with
termination for signing the Union petition. 45
JD(SF)-47-12
21
In Westwood Healthcare Center, 330 NLRB 935 (2000), the Board held that the
following factors determine whether an interrogation is unlawful:
(a) The background, i.e. is there a history of employer hostility and discrimination?5
(b) The nature of the information sought, e.g., did the interrogator appear to be seeking
information on which to base taking action against individual employees?
(c) The identity of the questioner, i.e. how high was he or she in the company
hierarchy?
(d) Place and method of interrogation, e.g. was employee called from work to the 10
boss’s office? Was there an atmosphere of unnatural formality?
(e) Truthfulness of the reply.
Id. At 939. In applying these factors, the Board incorporates its objective standard from
Rossmore House, 269 NLRB 1176-1178, fn.20 (1984), aff’d sub nom. UNITE HERE Local 11 v. 15
NLRB, 760 F.2d 1006 (9th Cir. 1985), to ask: whether under all of the circumstances the
interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.
Id. at 940.
For several reasons, I find that Sundquist and Diaz committed unlawful interrogations. 20
First, there is the extensive history of the Respondent’s Union hostility, as demonstrated from
Eccles’ statements in July throughout November along with Diaz’s and Sundquist’s stated
positions against the Union that anyone who signed the Union petition would be fired. Second,
on November 13, both Sundquist and Diaz asked Gallardo and Vargas whether they had signed
the Union petition and on November 14, Sundquist also asked Moreno and Gamas if they were 25
for the union or were union members. Both Sundquist and Diaz did not know these workers’
union sympathies at the time of their interrogations. Vargas denied signing the Union petition
and Gamas denied he was a union member and Moreno remained quiet. These questions were for
Sundquist and Diaz to determine whether or not to fire these workers for their union activity
signing the Union petition. Third, in the absence of owner Eccles onsite (he was in Boise, Idaho), 30
Sundquist and Diaz represent Respondent’s highest level onsite managers who were higher in the
Respondent’s company hierarchy than the interrogated employees. Fourth, the interrogation took
place outside the presence of others but where the workers were painting which amplified the
intimidation level by being separate from other employees. Lastly, 3 of the 4 employees asked
did not affirmatively respond truthfully. Under the totality of the circumstances, I find that the 35
November 13 and 14 interrogations by Sundquist and/or Diaz coercive and in violation of
Section 8(a)(1) of the Act.
A statement is an unlawful threat under Section 8(a)(1), when it interferes with, restrains,
or coerces employees in the exercise of their Section 7 rights. 29 U.S.C. Sec. 158(a). The 40
complaint alleges that Respondent violated Section 8(a)(1) of the Act several times in November
when Sundquist and/or Diaz: (1) threatened employee Deniz on November 11 by saying to each
other that they were going to fire the people who had signed the Union petition (Tr. 142.); (2)
later on November 11, Diaz told Vargas and Deniz again that “everyone who signed the paper
[the Union petition] was going to get fired.” (Tr. 153, 279-280.); (3) later in the week of 45
November 11, Bazan overheard Diaz say to Sundquist that “If those guys put their name on the
petition, you fire them. They go home.” Sundquist responded: “Yeah, those guys [who sign the
Union petition will be] fired.” (Tr. 211-212.); (4) on November 14, Sundquist threatened Moreno
JD(SF)-47-12
22
and Gamas that if they had signed the Union petition or were union members, they will have
problems in the future. (Tr. 229, 341.); and (5) on November 9, Diaz threatened Gallardo that he
should not sign the Union petition because those workers who sign would be fired and without a
job. (Tr. 254.).5
Sundquist testified at trial but he did not testify as to his alleged threats or interrogation. I
draw an adverse inference from Respondent’s failure to question its own witness about matters
which would normally be thought reasonable where such an omission does not appear
unintentional. See Colorflo Decorator Products, 228 NLRB 408, 410 (1977). I also draw an 10
adverse inference from the fact that Diaz did not testify to corroborate Eccles’ and Respondent’s
supervisors’ versions of the facts. See Douglas Aircraft Co., 308 NLRB 1217 (1992) (failure to
call a witness “who may reasonably be assumed to be favorably disposed to the party, [supports]
an adverse inference . . . regarding any factual question on which the witness is likely to have
knowledge”). Similarly, I discredit Lester’s and Key’s testimonies and draw the same adverse 15
inferences for the same reasons as to Lester’s and Key’s unquestioned explanations for
purportedly laying off Gallardo, Guevara, and Vargas, and the 4 Santillan and Lopez bothers,
respectively.
Cumulatively, these statements are alleged to unlawfully threaten Deniz, Vargas, Bazan, 20
Moreno, Gamas, Gallardo, and other pro-union employees with the loss of their employment
should they choose the Union as their collective-bargaining agent and sign the Union petition.
The lead case on this subject, and others, is NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969), where the Court stated:
25
An employer is free to communicate to his employees any of his general views about
unionism or any of his specific views about a particular union, so long as the
communications do not contain a “threat of reprisal or force or promise of benefit.” He
may even make a prediction as to the precise effects he believes unionization will have on
his company. In such a case, however, the prediction must be carefully phrased on the 30
basis of objective fact to convey an employer’s belief as to demonstrably probable
consequences beyond his control. . . . If there is any implication that an employer may or
may not take action solely on his own initiative for reasons unrelated to economic
necessities, and known only to him, the statement is no longer a reasonable prediction
based on available facts, but a threat of retaliation based on misrepresentation and 35
coercion, and as such without the protection of the First Amendment.
Based on my factual findings set forth above, I find merit in all of the complaint
allegations concerning the November threats by Diaz and Sundquist. The conversations
involving one or both of these Respondent supervisors and various pro-union employees 40
contained Diaz’s and Sundquist’s threats that by signing the Union petition or being a union
member, Deniz, Vargas, Bazan, Moreno, Gamas, Gallardo, and other pro-union employees will
lose their jobs at Respondent. In the context of Respondent’s other contemporaneous unfair
practices, it is apparent that the job terminations would be caused by Respondent’s reaction to
the union campaign and the signing of the Union petition. 45
Thus, Diaz’s and Sundquist’s November threats amounted to unlawful threats of reprisal
not made on the basis of objective fact. See Patsy Bee, Inc., 249 NLRB 976, 977 (1980) (Finding
JD(SF)-47-12
23
violation where employer had no indication from union that it would make demands which
would cause economic hardship, let alone plant closure; nor did he have evidence that his
customers might even pull their contracts.). Under the totality of the circumstances, I find that
the November threats by Diaz and Sundquist violated Section 8(a)(1) of the Act. 5
4. Eccles Unlawful Telephone Conversations with Rubi and Employees Linking
Employees’ Pay to Union Support
Acting General Counsel alleges under paragraphs 6(d)(ii)-(v)18, 8, and 9 of the complaint 10
that the Respondent made unlawful statements to Eccles Painting workers via the telephone on
various dates.
A statement is an unlawful threat under Section 8(a)(1), when it interferes with, restrains,
or coerces employees in the exercise of their Section 7 rights. 29 U.S.C. Sec. 158(a). The 15
complaint alleges that Respondent violated Section 8(a)(1) of the Act several times in November
when Eccles spoke via telephone and: (1) threatened Rubi on November 29 that Eccles would
lay off the rest of the Union petition signers within the next 5 days (Tr. 53-54, 109, 116-120.);
(2) responded to Danner: “that is what you fucking get for listening to the fucking union” (Tr.
183) when Danner told Eccles that it was “BS” that he was fired by Eccles because Danner’s 20
work was getting slow rather than for his signing the Union petition; (3) in response to Danner
asking when he would be paid his unpaid wages Eccles said: “you get your money when the lien
goes away; might be a couple of years” (Tr. 183); (4) in response to Danner telling him that
Danner and Bazan were valuable painters who should not have been fired, Eccles responds: “you
guys shouldn’t have listened to the damn Union … it is going to take 2 years for you to receive 25
your pay because you listened to the fucking union” (Tr. 91, 183); and (5) in response to Rubi
telling him that the workers just want union representation, Eccles responds by saying that he
fired the employees for listening to Rubi and filing their wage liens (Tr. 91). The Respondent did
not present any evidence to rebut these statements by Eccles.
30
An employer may not tell employees that it would be futile for them to attempt to
unionize. There is no doubt that the workers’ attempt to unionize at Eccles Painting in November
is protected concerted activity. See Meyers Industries, 281 NLRB 882, 885 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1986), cert. denied 487 U.S. 1205 (1988). Eccles’
words referenced above amounted to unlawful statements under the Act that it would be futile 35
for Respondent’s employees to engage in future concerted protected activity, which includes
union activities, because Eccles had fired them for their union activities (signing the Union
petition and picketing the worksite with Rubi) and workers could expect a long delay of up to 2
years to receive their back pay wages because they listened to the union and tried to unionize
Eccles Painting. See Goya Foods, 347 NLRB 1118, 1128–1129, 1132 (2006), enfd. 525 F.3d 40
1117 (11th Cir. 2008); Wellstream Corp., 313 NLRB 698, 706 (1994)), and Altercare of
Wadsworth Center for Rehabilitation and Nursing Care, Inc., 355 NLRB No. 96, slip op. at 9–10
(2010)(Examples of unlawful statements of futility include advising employees that the employer

18 Acting General Counsel dismissed her allegations at paragraph 6(d)(i) of the complaint in
her closing brief. GC Br. 16, fn. 12.
JD(SF)-47-12
24
will never permit its workplace to be unionized.) Under the totality of the circumstances, I
further find that the November threats by Eccles violated Section 8(a)(1) of the Act.
D. Section 8(a)(3) Allegations5
1. The General Wright Line Standard.
Acting General Counsel alleges under paragraphs 5, 7, and 9 of the complaint that the
Respondent violated Section 8(a)(3) of the Act by firing Deniz and 11 other Eccles Painting 10
workers for assisting the Union and/or engaging in protected concerted activities and to
discourage others from engaging in these and other protected concerted activities. I find that
Eccles Painting violated Section 8(a)(3) by terminating the employment of Deniz and 11 other
employees for their signing the Union petition and participating in other protected concerted
activities as discussed hereafter. 15
The standard set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982) is appropriately applied here. Under Wright Line,
the general counsel bears the initial burden to show that the employee’s union activity was a
substantial or motivating factor in the discharge. See Bruce Packing Co., 357 NLRB No. 93, slip 20
op. at 3 (2011). The general counsel satisfies this initial burden by showing union or protected
concerted activity by the employee, the employer had knowledge of the activity, and the
employer bore animus toward the union or protected activity. See, e.g., Fremont Medical Center,
357 NLRB No. 158, slip op. at 4 (2011). The burden then shifts to the respondent to demonstrate
that the same adverse action would have occurred even in the absence of the union activity. See 25
Wright Line, supra at 1089.
Generally the general counsel relies on evidence19 such as the timing of the employer’s
action,20 pretextual motives21, inconsistent treatment of employees,22 and shifting explanations
provided by the employer.23 Flour Daniel, Inc., 311 NLRB 498 (1993). “Since motive is critical 30
to a finding of an 8(a)(3) violation, but since direct evidence of motive is rare, one must look to
all of the attendant circumstances to determine whether the respondent acted improperly or not.”
Keller Mfg. Co., 237 NLRB 712, 734 (1978). See also Atlantic Metal Products, Inc., 161 NLRB
919, 922 (1966). Moreover, where the employer’s “given reason for termination is implausible,
then that fact tends to prove an attempt to disguise the true, and unlawful, motive.” Keller 35
Manufacturing Co., citing Capital Records, Inc., 232 NLRB 228 (1977). See also J. S. Troup

19 See also Association Hospital del Maestro, 291 NLRB 198 (1988) (finding that the
employee’s union activities were widespread and known to the employer and that there was
companywide union animus); White-Evans Service Co., 285 NLRB 81 (1987) (animus found
where employer fired two of the most outspoken union supporters and refused to rehire them
even though they continued seeking employees).
20 Bay State Ambulance & Hosp. Rental, 280 NLRB 1079 (1986).
21 Abbey Island Park Manor, 267 NLRB 163 (1983).
22 Carpenters Health & Welfare Fund, 327 NLRB 262 (1998).
23 NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263 (7th Cir. 1987).
JD(SF)-47-12
25
Electric, 344 NLRB 1009 (2005) (Board will infer an unlawful motive if the employer’s action is
“baseless, unreasonable, or so contrived as to raise a presumption of unlawful motive”).
In other words, under Wright Line,5
an employer cannot carry its burden of persuasion by merely showing that it had a
legitimate reason for imposing discipline against an employ, but must show by a
preponderance of the evidence that the action would have taken place even with the
protected conduct.10
North Carolina License Plate Agency, 346 NLRB 293, 294 (2006). If the evidence produced by
the employer is found to be pretextual, the inference of wrongful motive established by the
general counsel is left intact. Frank Black Mechanical, 271 NLRB 1302 (1984); Limestone
Apparel Corp., 225 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). In short, a finding of 15
pretext defeats any attempt by the employer to show that it would have discharged the
discriminate absent his or her (protected) union activities. Golden State Foods Corp., 340 NLRB
382 (2003).
2. The 12 Employees’ Discharges Violated Section 8(a)(3) and (1)20
The Acting General Counsel asserts that Danner, Bazan, Gamas, Deniz, Moreno,
Guevara, Gallardo, Omar, Adrian, Isaias, Irineo, and Vargas were terminated for engaging in
union and protected concerted activities and that the Respondent’s actions violated Section
8(a)(3) and (1). The Wright Line burden-shifting analysis set forth above is applicable to these 1225
terminations. Therefore, the Acting General Counsel must establish that all 12 employees were
engaged in protected conduct, that Respondent knew about this protected conduct and that union
animus was a motivating factor in Respondent’s decision to terminate the 12 employees.
On this record, the Acting General Counsel has met her initial burden of proving that the
Respondent fired each of the 12 employees at the Respondent in November and December, all 1230
employees signed the Union petition and also because some of the employees, with the Union’s
assistance, filed wage liens against the Respondent. Each fired employee clearly engaged in
protected union activities by signing the Union petition on November 11 or 17 and others also
participated in protected concerted activities when they filed wage liens against the Respondent.
(See GC Exhs. 4, 6(a), 6(b), 7-10.)35
The act of signing the Union petition, in particular, is an obvious protected union activity.
In addition, the wage liens raised protected concerns about wages, work hours, and other terms
and conditions of employment and alerted the Respondent about its unpaid wages to its
employees. Moreover, the Respondent, through supervisors/agents Sundquist and Diaz between 40
November 11 - 18, and Eccles, no later than November 25, were aware of those protected or
union activities. See Clark & Wilkins Industries, 290 NLRB 106, 106 (1988), enfd. 887 F.2d 308
(D.C. Cir. 1989), cert. denied 495 U.S. 934 (1990) (imputing supervisor’s knowledge to
employer where supervisor observed organizing campaign in small shop). Sundquist admitted
seeing employees meeting with Rubi and signing the Union petition on November 11. (Tr. 401.)45
Eccles also received the signed Union petition in late November. (Tr. 97-100; GC Exhs. 9-10.)
JD(SF)-47-12
26
I find that the Respondent’s animus against the Union was a substantial motivating factor
in Respondent’s actions against the 12 fired employees and is shown, as stated above, by Eccles’
profane and disparaging remarks against the Union several times in July with Rubi and again on
November 18 in a telephone call heard by Danner and Rubi. Besides Diaz threatening to kick the5
ass of a Union picketer on November 22 at Respondent’s Wood Center project, numerous times
Diaz and Sundquist threatened that they would fire employees who had signed the Union
petition. Diaz also exhibited animus in his statements to Adrian on November 29 calling Rubi a
“jerk” and confessing to vandalism at the Wood Center project in a weak attempt to set-up Rubi
and the Union to take the fall. Furthermore, Sundquist demonstrated anti-union animus in 10
statements to Rubi on November 18. I also note that animus can be gleaned from the close timing
between the November 11 signing of the Union petition and the November 15 and 18 discharges
of Deniz, Danner and Bazan as well as the complaints for non-payment of wages by Adrian in
late November and the December 7 firings of the Santillan and Lopez brothers. See Adco
Electric, 307 NLRB 11113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993)(suspicious timing 15
supports inference of animus). Finally, Respondent’s animus against the Union is further shown
by the independent 8(a)(1) violations I have found as described above. In these circumstances,
the Acting General Counsel has met her burden of showing improper anti-union animus for the
job terminations of all 12 employees at Respondent’s projects in November and December.
20
I conclude that the Acting General Counsel has presented a strong case in meeting her
burden under Wright Line. Where, as here, the Acting General Counsel makes a strong showing
of discriminatory motivation, the respondent’s Wright Line defense burden is substantial. Bally’s
Atlantic City, 355 NLRB No. 218, slip. op. at 3 (2010). I find that, on this record, Respondent
has not overcome that substantial burden and persuasively shown that it would have fired these 25
12 employees absent their union and protected activities.
Furthermore, it is well settled that evidence of false reasons given in defense and
tolerance of behavior for which the alleged discriminates were fired, disparate treatment of the
discharged employees, and reassignments of a pro-union from former duties isolating the 30
employee, all support inferences of animus and discriminatory motivation. Adco Electric, 307
NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems, Corp.,
305 NLRB 219 (1991); Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); Bourne Manor
Extended Health Care Facility, 332 NLRB 72 (2000); Visador Co., 303 NLRB 1039, 1044
(1991); In-Terminal Services Corp., 309 NLRB 23 (1992); Nortech Waste, 336 NLRB 554 35
(2001); Bonta Catalog Group, 342 NLRB 1311 (2004); L.S.F. Transportation, Inc., 330 NLRB
1054 (2000); and Medric One, Inc., 331 NLRB 464 (2000).
On November 15, Sundquist falsely told Deniz that he was fired because he was working
slowly when, in fact, Sundquist also disclosed the true reason Deniz was fired – he had signed 40
the Union petition. (Tr. 155-56.) On November 18, Danner was falsely told by Eccles that he was
being laid off because work was getting slow when, in fact, a large portion of work remained and
Eccles fired Danner because he signed the Union petition and had filed wages liens against the
Respondent. (Tr. 168-69, 181-183; GC Exhs. 6(a) and 7.) On November 30, Sundquist falsely
told Moreno that Moreno had “quit” on November 29 when, in fact, Moreno had car trouble and 45
Sundquist agreed Moreno could miss work on November 29 to repair his car and Sundquist fired
JD(SF)-47-12
27
Moreno for signing the Union petition. (Tr. 229-232; GC Exh. 13.) Also on November 29,
Sundquist falsely told Gamas that he was laid off for lack of work when, in fact, much painting
remained and Sundquist fired Gamas for signing the Union petition.
5
As stated above as an example of animus, Diaz also confessed to Adrian that he and
Sundquist themselves had vandalized the Wood Center project to try to set up Rubi by falsely
claiming he was responsible for the vandalism. This is another example of the Respondent’s
false statements. (Tr . 53-54, 109, 116-120, 322, 485.) On December 7, the Santillan and Lopez
brothers were laid off with the inference being that there was no more work at the PUD project 10
which was false as Eccles decided to fire the 4 through Key for signing the Union petition and
complaining to Diaz on November 29 about nonpayment of wages when 4-5 new replacement
workers came to the PUD project the week before. (Tr. 306-325.) Finally, on December 15,
Vargas, Gallardo, and Guevara were told by Lester they were being laid off for lack of work and
complaining about not being paid. While the statement involving their wage complaints is true15
and unlawful, Lester’s statement that there was no work is false and contradicted by the fired
employees’ estimates about what work remained and the fact that by December 15 Respondent
had hired new replacement workers who had not signed the Union petition. The Respondent has
not shown that it would have terminated any of the 12 employees in the absence of their union or
protected concerted activity including their signing the Union petition.20
For the reasons stated above, the Respondent’s proffered justification for the
terminations of the 12 workers are false and pretextual and support a finding of unlawful
motivation and precludes a Wright Line defense. See Rood Trucking Co., 342 NLRB 895, 898
(2004). I find that the 12 employees, Danner, Bazan, Gamas, Deniz, Moreno, Guevara, Gallardo, 25
Omar, Adrian, Isaias, Irineo, and Vargas, were unlawfully terminated by Respondent for
engaging in union or protected concerted activities.
Conclusions of Law
30
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Eccles, Sundquist, Diaz, Key, Alvarado, and Lester are supervisors within the
meaning of Section 2(11) of the Act.35
4. Diaz and Key are agents within the meaning of Section 2(13) of the Act.
5. By terminating employees Damon Danner, David Bazan, Luiz Deniz, Also Gamas,
Jose Moreno, Alfredo Vargas, Gustavo Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez,
Adrian Santillan, and Omar Santillan on specific dates referenced here from November 15
through December 15, 2011, because they signed the Union petition, support the Union or 40
engage in protected concerted activities, the Respondent violated Section 8(a)(3) and (1) of the
Act.
JD(SF)-47-12
28
6. Respondent engaged in conduct in violation of Section 8(a)(1) of the Act:
(a) By surveilling employees on November 11, 2011 at the Wood Center project.
(b) By creating an impression of surveillance of employees’ union activities on
November 11, 2011.5
(c) By threatening employees with termination for signing the Union petition at various
times from November 11 through December 15, 2011.
(d) By telling employees that they would not be paid wages due to their support of the
Union.
(e) By telling employees that payment of their earned wages would be delayed due to 10
their support of the Union.
(f) By telling employees that they would lose their jobs because of their support of the
Union.
(g) By telling employees that they would be paid their back pay wages once they released
their wage lien(s) against Respondent. 15
(h) By interrogating employees at various times from November 11 through December 7,
2011 whether they had signed the Union petition.
7. These unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
8. The above violations are unfair labor practices within the meaning of the Act.20
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist from engaging in such conduct in the future and to
take certain affirmative action designed to effectuate the policies of the Act. To remedy the 25
Respondent’s violations of Section 8(a)(1) of the Act, I shall recommend that the Respondent
post and abide by the attached notice to employees.
Having found that Respondent unlawfully laid off or terminated employees Damon
Danner, David Bazan, Luiz Deniz, Also Gamas, Jose Moreno, Alfredo Vargas, Gustavo 30
Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez, Adrian Santillan, and Omar Santillan, I
shall order it to offer them full and immediate reinstatement to their former jobs, or, if those jobs
no longer exist, to substantially equivalent positions within the Puget Sound area, without
prejudice to their seniority or any other rights and privileges previously enjoyed, displacing any
other newly hired or reassigned employees, and in the event an insufficient number of positions 35
exist to accommodate all the discriminates, establish a preferential hiring list for such employees,
and offer, in a nondiscriminatory manner, priority employment exclusively from that list as job
openings occur, as well as specifying that the offers are to be made in writing. In addition,
Respondent will also make each of the 12 discriminates whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them. The Respondent shall also be 40
required to remove from its files any and all references to the unlawful layoffs or terminations,
JD(SF)-47-12
29
and to notify employees Damon Danner, David Bazan, Luiz Deniz, Also Gamas, Jose Moreno,
Alfredo Vargas, Gustavo Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez, Adrian Santillan,
and Omar Santillan in writing that this has been done and that such adverse actions will not be
used against them in any way. 5
The amount of the make-whole remedy applicable to violations of Section 8(a)(3) shall
be calculated according to the formula of F.W. Woolworth Co., 90 NLRB 289 (1950). See, e.g.,
KLB Indus. Inc., 357 NLRB No. 8 (2011); R.E. Dietz Co., 311 NLRB 1259, 1268 (1993). Interest
shall be compounded daily as described in Kentucky River Medical Center, 356 NLRB No. 8 10
(2010), set aside by 647 F.3d 1137 (D.C. Cir. 2011). E.g., KLB, 357 NLRB No. 8.
In addition to physical posting of paper notices, notices shall be distributed electronically,
such as by e-mail, posting on an intranet or internet site, and/or other electronic means, if the
Respondents customarily communicate with its members and/or employees by such means. J. 15
Picini Flooring, 356 NLRB No. 9 (2010). The posting of the paper notice by the Respondent
shall occur at all places where notices to employees are customarily posted.
Acting General Counsel also requests that the notice to employees in this case shall be in
both Spanish and English as many of the terminated employees cannot read or understand 20
English. I also find that Mr. Eccles, as Respondent’s president, should be required to read the
notice to his employees. As the Board has explained, the purpose of requiring a manager to read
a notice aloud to employees is to better impress upon the employees the fact that the employer
and its officials are bound by the Act. Marquez Bros. Enters., Inc., 358 NLRB No. 61 (2012)
(citing Federated Logistics & Operations, 340 NLRB 255, 258 (2003), enfd., 400 F.3d 920 (D.C. 25
Cir. 2005)). The Board explained that it will require a notice to be read aloud “where an
employer’s misconduct has been ‘sufficiently serious and widespread that reading of the notice
will be necessary to enable employees to exercise their Section 7 rights free of coercion.’” Jason
Lopez’ Planet Earth Landscape, Inc., 358 NLRB No. 46 (2012) (quoting HTH Corp., 356 NLRB
No. 182 (2011)). In this case, the unfair labor practices occurred in an intentional and blatant 30
attempt to ignore the Act. There is a dozen discriminates. Moreover, the unfair labor practices in
this case were very serious. Even before engaging in the 2 projects primarily at issue in this case,
the Respondent’s president exhibited an extreme disregard for union activity and the Act’s
relevance over his business operations. Respondent, driven by antiunion animus, discriminated
against members of the bargaining unit in assembling its workforce. This is tantamount to an 35
effort to wholly dislodge the Union from its statutory role as bargaining representative of the
employees. As a deliberate attempt to deprive the Union of its role as bargaining partner, it
strikes at the heart of the national policy embodied in the Act, viz., “encouraging the practice and
procedure of collective bargaining.” Since Eccles made the illegal firing decisions in this case, he
ought to be the one to read the notice. See Planet Earth Landscape, 356 NLRB No. 182 40
(requiring the individual who personally committed the unfair labor practices to read the notice).
JD(SF)-47-12
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:24
ORDER5
The Respondent, Eccles Painting, Inc., of Boise, Idaho, its officers, agents, successors,
and assigns, shall
1. Cease and desist from10
(a) Unlawfully interrogating, surveilling, creating the impression of surveillance, and
threatening employees for engaging in union and/or protected concerted activity;
(b) Unlawfully laying off, terminating, or otherwise discriminating against employees
for engaging in union and/or protected concerted activity protected by the Act;
(c) Unlawfully in any like or related manner interfering with, restraining, or coercing 15
employees in the exercise of their 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 employees Damon Danner,
David Bazan, Luiz Deniz, Also Gamas, Jose Moreno, Alfredo Vargas, Gustavo Gallardo, Jaime
Guevara, Isaias Lopez, Irenio Lopez, Adrian Santillan, and Omar Santillan immediate and full 20
reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent
positions in the Puget Sound area, along with their seniority and all other rights and privileges,
displacing as necessary any other newly hired or reassigned employees, and in the event an
insufficient number of positions exist to accommodate all the discriminates, establish a
preferential hiring list for such employees, and offer, in a nondiscriminatory manner, priority 25
employment exclusively from the list as job openings occur, as well as specifying that the offers
are to be made in writing.
(b) Make employees Damon Danner, David Bazan, Luiz Deniz, Also Gamas, Jose
Moreno, Alfredo Vargas, Gustavo Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez, Adrian
Santillan, and Omar Santillan whole, with interest, for any loss of earnings and other benefits 30
suffered as a result of the unlawful discrimination against them, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this order, remove from its files any reference to
the unlawful actions taken against Damon Danner, David Bazan, Luiz Deniz, Also Gamas, Jose
Moreno, Alfredo Vargas, Gustavo Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez, Adrian 35

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48
of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD(SF)-47-12
31
Santillan, and Omar Santillan and, within 3 days thereafter, notify them in writing that this has
been done and that the unlawful employment actions 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 5
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 back pay due under the terms of this Order.
(e) Within 14 days from the date of this Order, post at its jobsites in the Puget Sound
area in all locations where employee notices are customarily posted, copies of the attached notice 10
marked “Appendix” in English and Spanish.25 Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by the Respondent’s authorized
representative, shall be posted immediately upon receipt 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 15
are not altered, defaced, or covered by any other material. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. In the event that, during the pendency of this proceeding,
Respondent has gone out of business or closed the facility involved in these proceedings, 20
Respondent shall duplicate and mail, at its own expense, a copy of the notice, and the approved
Spanish translation, to all current and former employees who were working on the Seattle
Central Community College Wood Center project and/or the Mason County Public Utility
District project at any time since November 15, 2011, and to the employees referred to in
paragraph 2(a), at their last known addresses.25
(f) Within 14 days from the date of this Order, Respondent, by its President Arthur
Eccles, will read a copy of the notice to its employees at all jobsites in the Puget Sound area.
(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.30

25 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(SF)-47-12
32
(h) Within 14 days of the date of this order, the Respondent will hold a meeting or
meetings, scheduled to ensure the widest possible attendance, at which the attached notice
marked “Appendix” will be publicly read by the responsible corporate executive, Art Eccles,
president, in both English and Spanish, in the presence of a Board agent, or at Respondent’s 5
option, by a Board agent in Mr. Eccles’ presence.
Dated: Washington DC, September 25, 2012
10
Gerald M. Etchingham
Administrative Law Judge
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 ask you about your or your fellow employees’ support for a union.
WE WILL NOT create an impression that we are watching your union activities.
WE WILL NOT watch you in order to find out about your union activities.
WE WILL NOT threaten you with discharge or layoff if you choose to be represented
by or support a union.
WE WILL NOT tell you we will delay the payment of your wages because of your
union support and WE WILL pay your wages for all hours worked whether you have filed wage
claims with other Local, County, or State agencies or not.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed to them by Section 7 of the National Labor
Relations Act.
WE WILL, within 14 days from the date of the Board’s Order, reinstate Damon Danner,
David Bazan, Luiz Deniz, Also Gamas, Jose Moreno, Alfredo Vargas, Gustavo Gallardo, Jaime
Guevara, Isaias Lopez, Irenio Lopez, Adrian Santillan, and Omar Santillan to their former
positions or, if those positions no longer exist, to substantially equivalent painting jobs in the
Puget Sound area, without prejudice to their seniority or any other rights or privileges previously
enjoyed, displacing as necessary any other newly hired or reassigned employees, and in the event
an insufficient number of positions exist to accommodate all the discriminates, establish a
preferential hiring list for such employees, and offer, in a nondiscriminatory manner, priority
employment exclusively from that list as job openings occur, as well as specifying that the offers
are to be made in writing.
WE WILL pay Damon Danner, David Bazan, Luiz Deniz, Also Gamas, Jose Moreno,
Alfredo Vargas, Gustavo Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez, Adrian Santillan,
and Omar Santillan for the wages and other benefits owed to them and that they lost and make
them whole for any loss of earnings and other benefits, including interest, suffered because we
fired them.
WE WILL, within 14 days from the date of the Board’s Order, rescind the layoffs or
terminations of Damon Danner, David Bazan, Luiz Deniz, Also Gamas, Jose Moreno, Alfredo
Vargas, Gustavo Gallardo, Jaime Guevara, Isaias Lopez, Irenio Lopez, Adrian Santillan, and
Omar Santillan and expunge any reference to their lay off or termination from all our files and
records and WE WILL within 3 days thereafter inform each of them in writing that this has been
done and that these unlawful disciplinary actions will not be cited or used against them in any
way in the future.
ECCLES PAINTING, INC.
(Employer)
Dated By
(Art Eccles) (President)
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
Charging Party representation and it investigates and remedies unfair labor practices by employers and
Charging Parties. 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.
915 Second Ave., 29th Floor
Seattle, Washington 98174
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
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, 206-220-6300.