Iberia Road Markings, Corp.

National Labor Relations Board - Board Decisions

Feb 27, 2009

353 N.L.R.B. 1009 (N.L.R.B. 2009)

IBERIA ROAD MARKINGS CORP.
353 NLRB No. 101
1009
Iberia Road Markings Corp. and Alecc Ortiz
Iberia Road Markings Corp. and Alecc Ortiz, Peti-
tioner and Local 917, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and International Union of
Painters and Allied Trades, Local 8A–28A,
AFL–CIO. Cases 29–CA–27930 and 29–RD–
1070
February 27, 2009
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On May 18, 2007, Administrative Law Judge Mindy
E. Landow issued the attached decision. The Respondent
filed exceptions and a supporting brief. Intervenor Inter-
national Union of Painters and Allied Trades, Local 8A–
28A, AFL–CIO filed exceptions, and the Respondent
filed an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s credibility resolutions, we find it unneces-
sary to rely on the adverse inference drawn by the judge from the Re-
spondent’s “unexplained failure” to adduce testimony from employee
Ray Dominguez to corroborate President and Part Owner Jose Freire’s
version of a phone conversation with Dominguez that occurred shortly
after Freire received the decertification petition.
3 We agree with the judge’s recommendation that the challenged bal-
lots of Alecc Ortiz, Miguel Freire, and Danny Travers be opened and
counted. In addition, we shall direct the Regional Director to open and
count the ballot of Javier Figueira. The challenge to Figueira’s ballot
was overruled by the Regional Director in his December 14, 2006
Report on Challenges, Order Consolidating Cases, and Notice of Hear-
ing.
orders that Respondent Iberia Road Markings Corp.,
Brooklyn, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
29 shall, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballots of Alecc
Ortiz, Miguel Freire, Danny Travers, and Javier Figueira.
The Regional Director shall then prepare and serve on
the parties a revised tally of ballots and issue the appro-
priate certification.
Emily DeSa, Esq., for the General Counsel.
Joshua D. Rose and Fred E. Klein, Esqs. (Klein Zelman
Rothermel LLP), of New York, New York, for the Respon-
dent/Employer.
Tyler D. Malin and Roger H. Madon, Esqs. (Madon Malin,
P.C.), of New York, New York, for the Intervenor.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. On October
2, 2006,1 a petition for an election was filed by Alecc Ortiz
(Ortiz or Petitioner) seeking to decertify Local 917, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Local 917), as
the representative of certain employees of Iberia Road Mark-
ings Corp. (Respondent or the Employer). International Union
of Painters and Allied Trades, Local 8A–28A, AFL–CIO (Lo-
cal 8–A) intervened on the basis of a showing of interest.
Pursuant to a decision and direction of election (the Deci-
sion) issued on October 19, an election by secret ballot was
conducted on November 13, among the employees in the fol-
lowing unit:
All full-time and regular part-time drivers who are engaged in
driving kettle trucks transporting principally the road marking
material to the application site, breaking block (can or bag),
assisting thin loading material, feeding the kettle, loading the
truck, in layout or traffic control and any other duties required
as part of the crew operations, secretary, crew chiefs and la-
borers (stripes) employed by the Employer out of its 104
Lombardy Street, Brooklyn New York facility and excluding
guards and supervisors as defined in the Act.2

1 All dates herein are in 2006 unless otherwise specified.
2 Pursuant to the petition, a hearing was held before a hearing offi-
cer. The Employer did not appear at the hearing, but had previously
entered into certain stipulations for the record. At the hearing both labor
organizations stipulated, and the Acting Regional Director found,
among other things, that the unit set forth above is an appropriate one
for purposes of collective bargaining. The Acting Regional Director
also found that the Employer is engaged in the construction industry
and, therefore, in addition to employees who would be eligible to vote
under the Board’s traditional criteria, also eligible to vote are all unit
employees who have been employed for a total of 30 working days or
more within the 12 months immediately preceding the election eligibil-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
There were determinative challenges to the ballots of six vot-
ers.3
Thereafter, on December 14, based upon a charge and first
amended charge filed by Ortiz on October 3 and November 30
respectively, a complaint and notice of hearing issued alleging
that Respondent violated Section 8(a)(1)(3) and (4) of the Act
by discharging Ortiz because he filed a decertification petition
with the Board. Respondent filed an answer denying the mate-
rial allegations of the complaint. On December 14, the Regional
Director for Region 29 also issued a report on challenges, order
consolidating cases, and notice of hearing (the report) which
sustained the challenges to the ballots of two voters on the basis
that they were corporate officers and owners of the Employer,
overruled the challenge to the ballot of one employee and di-
rected that a hearing be conducted to resolve the challenges to
the votes of Ortiz, Miguel Freire, and Danny Travers. The hear-
ing on challenges was consolidated for hearing with the unfair
labor practice case. As regards the challenged ballots, the issues
defined for hearing by the report are (1) whether Ortiz was
discharged for cause on October 2, or in violation of the Act;
(2) whether Miguel Freire, as an employee-relative of the Em-
ployer’s owner and President is “aligned with management” or
has a sufficient community of interest with other bargaining
unit members to warrant his inclusion in the unit; and (3)
whether Danny Travers was laid off on December 7, 2005, or
voluntarily quit prior to the completion of the last job for which
he was employed. I heard these consolidated cases on February
5 and 6, 2007, in Brooklyn, New York.4
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent/Employer and Local 8-
A,5 I make the following:

ity date, or who have had some employment during that period and who
have been employed 45 days or more within the 24 months immedi-
ately preceding the election eligibility date. Employees who had been
terminated or quit voluntarily prior to the last job for which they were
employed would not be eligible to vote under this formula. See Steiny
& Co., 308 NLRB 1323 (1992); Daniel Construction, 133 NLRB 264
(1961), modified at 167 NLRB 1078 (1967). None of the parties in-
volved herein exercised their right, under Section 102.67 of the Board’s
Rules and Regulations, to file a request for review of the Decision with
the Board.
3 The election resulted in a vote of six votes for Local 917, eight
votes for Local 8–A with six challenged ballots.
4 Local 917 did not enter an appearance herein.
5 On April 5, Local 8-A filed its brief with the undersigned. Briefs
had been due on March 27. In a cover letter, copies of which were sent
to the Employer and the General Counsel, Local 8–A represented that it
had served its brief on the Regional Director in the mistaken belief that
I was serving as hearing officer rather than as administrative law judge
in this matter, and was apprised of this error only after counsel for the
General Counsel returned to the Regional Office after a vacation. Inas-
much as no other party has raised an objection, I am accepting Local 8-
A’s brief and will consider the arguments raised therein to the extent it
is appropriate to do so, as discussed below.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a domestic corporation with its principal
office and place of business located at 104 Lombardy Street,
Brooklyn, New York, is engaged in the road marking business.
During the past year, which period is representative of its an-
nual operations generally, in the course and conduct of its busi-
ness operations, Respondent purchased and received at its
Brooklyn facility road marking material valued in excess of
$50,000 directly from suppliers located outside the State of
New York. Respondent admits, and I find, that at all material
times it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The record
establishes, and I find that Local 917 and Local 8-A are labor
organizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent’s Business Operations
Respondent is a small privately-owned corporation whose
primary business is painting lines on public streets. Jose Freire
(Freire), who has been the President of the company for the
past 25 years,6 is one of five owners, each of whom owns 20
percent of the stock. Other owners include Freire’s brother and
cousin. Jose Manuel Suarez (Suarez), who testified herein, is
the shop foreman, vice president of the corporation, and a co-
owner as well.7 He is oftentimes referred to as “Manny.”
Respondent’s facility is located in the Greenpoint section of
Brooklyn, geographically equidistant between the Queensboro
(also known as the 59th Street) Bridge and the Williamsburg
Bridge. Employees work in crews consisting of a foreperson,
one or two laborers, and a “kettle truck” driver.8

6 Freire testified to an extensive tenure in the industry. Prior to as-
suming ownership of Respondent, Freire worked for Permaline Corpo-
ration, beginning as a laborer and winding up as vice president. Coun-
sel for the Respondent elicited testimony that, during the 1978–1979
season, employees of the company went on strike for over 2 months,
that hard feelings continued afterward and there were numerous in-
stances where the company’s equipment was sabotaged. The then-
owner tired of the situation and put the company up for sale. Freire,
together with certain coworkers and other investors, purchased the New
York operations of this company.
7 Suarez did not offer any testimony regarding his ownership interest
in or position as vice president with Respondent. However, as is appar-
ent from the Report, Suarez voted in the election, and his ballot was
challenged by the Petitioner and Local 8–A. In sustaining the challenge
to his ballot, the Regional Director noted that, “there is no dispute that
Suarez is the Employer’s Vice President . . . [and] owns 20% of the
Employer’s outstanding stock.” Finding Suarez to be a corporate offi-
cer and owner, the Regional Director sustained the challenge to his
ballot. I take administrative notice of the Regional Director’s findings
as regards Suarez’s ownership in and position with Respondent. I fur-
ther note that Freire testified that Suarez was a co-owner of Permaline,
as well.
8 The crew operates two trucks. These are known as the “kettle
truck” and the “pickup truck.” The kettle truck contains the equipment
for melting the thermoplastic material which is used to “paint” the
street lines. The pickup truck, which always follows the kettle truck, is
IBERIA ROAD MARKINGS CORP. 1011
Respondent’s business operates primarily on a seasonal ba-
sis, typically from March or April through November or De-
cember. At the end of each season, most of the employees are
laid off. Two or three of the most senior employees are retained
to maintain the equipment and work in the shop. Employees are
recalled from lay off, as business allows, in the order of their
seniority. During the period of their lay off, employees file for
unemployment benefits and many seek other employment.
Local 917 has been the collective-bargaining representative
of Respondent’s employees for a number of years. The most
recent collective-bargaining agreement was due to expire on
September 30.9 Article 14 of the agreement (Discharge) pro-
vides as follows:
No employees shall be discharged except for good and suffi-
cient cause. . . Examples of such good and sufficient cause
include, but are not limited to: proven theft of money, goods
or merchandise, proven drunkenness or proof of being under
the influence of alcohol or drugs during working hours, call-
ing an unauthorized strike or walkout, assault on Employer or
its representatives, failure to report an accident of which the
employee would normally be aware, proven recklessness re-
sulting in a serious accident while on duty, the carrying of un-
authorized passengers in the cab or truck while on duty, en-
gaging in unauthorized transportation of merchandise or
goods for personal gain during working hours and direct re-
fusal to obey orders of the Employer which are not in viola-
tion of this agreement.
The Discharge of Alecc Ortiz
Ortiz was employed by the Respondent for approximately 13
years, primarily as a laborer and occasionally as a foreman. His
principal duties were to pour thermoplastic into the kettle drum
to be melted, sweep debris out of the way, and flag and direct
traffic.
Ortiz’ Prior Discipline
In November 2003, Ortiz was involved in an incident which
led to his discharge, which was then converted into a 1-week
suspension. On this occasion, Ortiz had removed some propane
tanks from their storage area and was preparing to load the
kettle truck assigned to his crew. Shop foreman Suarez in-
structed Ortiz to give the tanks to another crew. Ortiz, who had
previously injured himself lifting and carrying such tanks, be-
came upset at this direction and began to argue with Suarez.
Suarez left the area to get a cup of coffee, but Ortiz remained
upset. His comments provoked coworker Jose Raymond
Dominguez (Dominguez), the crew chief on the truck which
was designated to receive the propane, and Dominquez threw a
punch at Ortiz, missing him. Suarez reported the situation to
Freire, who came downstairs to the shop floor and fired both
Ortiz and Dominguez. According to the accounts offered by
both Ortiz and Dominquez and as set forth in a contemporane-
ous letter prepared by Freire and sent to Local 917 (based upon

driven by one of the laborers and is used for, among other things, moni-
toring the gauges on the kettle truck.
9 On August 10, Respondent and Local 917 entered into a memoran-
dum of agreement extending the collective-bargaining agreement for a
6 month period from October 2006 to April 2007.
the events as reported to him at the time by Suarez),10
Dominguez made one unsuccessful attempt to hit Ortiz, which
he did not return.11 Nevertheless, Ortiz was viewed as the pro-
vocateur and instigator of the incident. After both men were
fired, the Union intervened and Dominguez was allowed to
return to work on the following day. Ortiz’ discharge was con-
verted to a 1-week suspension and, as a condition of returning
to work, he was required to acknowledge by his signature a
letter written by Freire to Local 917 official Paul Isaac which
states, in pertinent part, as follows:
As per our telephone conversation today’s date I agree with
you that Ray Dominguez can come back to work tomorrow
November 5, 2003. However, since Alecc Ortiz was the insti-
gator on this fight he will be suspended without pay for one
working week. Therefore, this letter has to be signed by you
and Mr. Ortiz that if he starts another fight or he gives any of
his superiors problems he will be terminated.
Freire testified that his understanding of this letter was that
Ortiz would be reinstated after his suspension, “with the condi-
tion that he would never be in problems again . . .” Ortiz simi-
larly testified that he realized that if he engaged in any more
misconduct, he would be terminated.
Ortiz received no other discipline during his employment
with Respondent.
The Decertification Petition
In early September, Union Representative Isaac met with
employees and informed them that they might have to accept a
reduction in pay and/or benefits. Employees were unhappy
about these proposals and decided to try to decertify Local 917.
Approximately six employees visited the Board’s Brooklyn
Regional Office and met with the information officer, who
advised them to return in October, after the collective-
bargaining agreement expired. The information officer further
advised employees that it was not necessary for them all to
return, that one or two individuals would suffice.
Ortiz subsequently prepared a petition stating, in essence,
that employees no longer wished to be represented by Local
917, and all the current employees signed it. He returned to the
regional office on October 2.

10 This letter outlines the employees’ misconduct as follows: “Alecc
started to argue with Manny [Suarez] and getting his faced (sic) close to
him and screaming. As the coffee truck pulls in Manny ignores him and
went to get a cup of coffee. At that time Alecc approached Ray
[Dominguez] screaming and insulting him and after a while Ray lost
his patience and through (sic) a punch to Alecc. At that point Manny
called me. I went down and heard what happened and at that moment I
fired them both. I think that Ray would not have punched Alecc if he
did not instigate him as he did.”
11 In his testimony, Suarez offered an account of events differing
from that of other witnesses and from what he apparently reported to
Freire on that occasion. He stated that the two men were fighting, al-
though he did not see who threw the first punch. Later, Suarez testified
that he saw Ortiz throw punches at Dominguez: “I saw him swinging at
him, but I don’t know if he really got to punch him or not but I know
they were fighting.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
Events of October 2
On October 2, Ortiz was working the night shift, which runs
from 3 a.m. to 2 p.m.12 The other members of his crew were
Dominguez, who was the foreman, pickup truck driver Manuel
Vazquez (Vazquez), and kettle truck driver Julio Rosas
(Rosas).13 The men were working on a project, extending over
several days, painting lines along Fifth Avenue (in Manhattan)
in cross streets ranging from the upper 60’s to the lower 20’s.
On that day, the crew left the shop, stopped off for breakfast,
and then drove to the work site via the Queensboro Bridge. It
appears from the testimony that the crew’s work on that day
was concentrated above 50th street.
Ortiz had the document containing employee signatures with
him, and at the beginning of the work day he informed
Dominguez that, if he had a chance, he would go to the Labor
Board to drop it off. Vazquez testified that at some point Ortiz
showed him an envelope and stated that he wanted to drop it
off. He could not specifically remember when that occurred,
but stated that it was “maybe during the traveling from—from
where we had lunch, after that.” None of the employees who
testified herein provided testimony regarding further discussion
of the petition or Ortiz’ apparent plan to bring it to the Board
that day.
Crews working the night shift frequently complete their
work for the day prior to stopping for their lunchbreak, and this
is what occurred on October 2. The crew worked straight
through and stopped for the day at approximately noon. They
then took their meal break from noon to 1 p.m. The testimony
as to where the crew ate on that day is not consistent, but the
record establishes that the site, a diner away and further down-
town from the work site, was selected by Foreman Dominguez,
at a location where parking was easier. After the lunch hour
was completed, the men got into the trucks and proceeded into
Brooklyn via the Manhattan Bridge.14 Again, the record estab-
lishes that this route was selected by Dominguez, with Rosas
driving the kettle truck. Vasquez, driving the pickup truck with
Ortiz as passenger, followed behind.15 When asked why he
made the decision to take the Manhattan Bridge as opposed to
an uptown route, Dominguez was unable to provide a specific
reason. He stated his decision to take the Manhattan Bridge
rather than the Williamsburg Bridge (which is closer to Re-

12 The record establishes that due to the flow of traffic or other un-
foreseen circumstances, employees will at times return to Respondent’s
facility either shortly prior or subsequent to the end time of their shifts.
They are neither docked pay nor provided additional compensation for
these variances in hours.
13 All three members of the crew, current employees, were called to
testify by the Respondent.
14 The record establishes that there are four east river crossings
available to a truck carrying propane: the uptown Triborough Bridge;
the midtown Queensboro Bridge; the downtown Manhattan Bridge; and
the downtown Williamsburg Bridge. According to witness testimony,
assuming traffic or other considerations are not at issue, the most direct
route to the shop from a midtown location is via the Queensboro
Bridge; and the most direct route from a downtown location is via the
Williamsburg or Manhattan Bridge.
15 The record establishes that the usual practice is for the kettle truck
to precede the pickup truck so that the crew on the pickup truck can
monitor the gauges on the kettle truck.
spondent’s facility) was based upon a “road situation” near the
latter. Rosas, who was driving the kettle truck, similarly ob-
served some “police activity” on the street leading to the Wil-
liamsburg Bridge, but Vasquez failed to recall any such diffi-
culty, and said he just followed the kettle truck. Dominguez
stated that while working on this Fifth Avenue project, the crew
had taken the Queensboro Bridge back to the shop on almost all
occasions, except for once or twice when they were working
downtown at about 20th Street. He additionally offered unre-
butted testimony that he was never questioned about his selec-
tion of a route; that on other occasions had used downtown
bridges to return to the facility and that there was never one
particular route that the drivers were supposed to follow.
Once the men crossed the Manhattan Bridge, they stopped at
a deli to get a drink. As Dominguez testified, it was a little early
and there was no traffic. From the testimony of the employee
witnesses, it appears that it was common practice for them to
stop off to get a drink on the way back to the shop irregardless
of the route they took back to the facility.16 The deli the crew
stopped at that day was located a few blocks from the Board’s
Brooklyn Regional Office, and Ortiz told Dominquez that he
was going to drop off the employee petition. Vazquez drove
Ortiz to the Regional Office, dropped him off, and returned to
the deli. Ortiz met with the information officer, submitted the
paperwork and then ran back to the trucks. Dominquez and
Rosas had already left for the shop. Vazquez and Ortiz were
behind them by about 15 to 20 minutes.17 It is undisputed that
the petition filed by Ortiz was time stamped at 1:48 p.m., which
is during the course of his work day. It is also undisputed that
the Region’s offices were open on that day from 9 a.m. to 5:30
p.m.
Ortiz is Discharged
At about 2:20, Freire was in his office having lunch when
Dominquez entered. The two men exchanged pleasantries. At
approximately 4 p.m. Freire received a facsimile copy of the
decertification petition filed earlier that day, signed by Ortiz.
Freire testified that he failed to understand the significance of
the document at the time. In addition to a copy of the petition
itself, the Regional Office sent a transmittal slip, containing the
following information:
Attached is an advance copy of a representation petition filed
today with the National Labor Relations Board. This petition
constitutes a request to this Agency to conduct a union repre-
sentation election among the unit of employees described in
paragraph 5 of the petition. This advance copy is being pro-
vided for your information. More detailed information is be-
ing forwarded to you today.
PLEASE NOTE THAT A NOTICE OF HEARING, COPY
ATTACHED IS ALSO BEING ISSUED TODAY FOR A

16 Rosas testified that employees typically stop for a drink on their
way back to the shop, even if they have just recently finished lunch.
Similarly, Ortiz testified that the crew usually stops for a drink of water
or Gatorade.
17 The record indicates that Dominguez and Rosas returned to the
shop at approximately 1:45 and Ortiz and Vazquez returned at ap-
proximately 2:05 p.m.
IBERIA ROAD MARKINGS CORP. 1013
HEARING TO BE CONDUCTED ON THE DATE SET
FORTH IN THE NOTICE. THE HEARING WILL BE
CONDUCTED ON THE DATE SPECIFIED UNLESS A
POSTPONEMENT THEREOF IS REQUESTED
PURSUANT TO THE ATTACHED INSTRUCTIONS.
THE HEARING WILL BE CONDUCTED ON
CONSECUTIVE DAYS UNTIL CONCLUDED.
According to Freire, he then called Dominquez, and started
yelling at him over the phone, calling him a “son of a bitch”
and asking him, “why do you take my trucks and time to the
Labor Board on Flatbush Avenue and J Street, when you guys
were supposed to take the 59th Street Bridge coming back to
minimize the problems of having an accident.”18 According to
Freire, Dominguez replied that he had told Ortiz “not to do it”
because he was already getting into problems. Responding to
specific questions by Respondent’s counsel, Freire stated that
Dominquez failed to mention anything about eating lunch
downtown or police activity at the Williamsburg Bridge. Freire
failed to present any other testimony regarding what the two
might have discussed on this occasion. Dominquez offered no
testimony regarding this telephone conversation and, in fact,
was asked nothing about it when called to testify by Respon-
dent.
Freire next attempted to contact Ortiz, was unable to reach
him, and left two messages on his voice mail. During the period
of time when Freire was leaving these messages, Ortiz was at
home, taking a shower. His wife informed him that his phone
had been ringing. Ortiz saw that Dominquez had called, and
called him back. Dominquez told Ortiz that Freire was “furi-
ous” and had “found out” what they had done that day. As Ortiz
testified, he then called Freire who told him that he knew what
he did that day. Ortiz replied that he had just dropped off a
piece of paper. Freire told Ortiz he was fired. After Ortiz hung
up he saw he had two messages. In these messages Freire stated
that he knew Ortiz had gone to the Labor Board and that he was
fired.
Freire was questioned pursuant to Rule 611(c) by counsel for
the General Counsel, and admitted that in one of the messages
he left for Ortiz he identified himself, told Ortiz that it was
very, very important that he call as soon as possible, stated that
he knew Ortiz had gone to the Labor Board that day, and fur-
ther told Ortiz that “whatever he did that day at the Labor
Board was going to get [him] fired.” Freire subsequently left
another message for Ortiz telling him not to bother to come in.
Freire was also questioned regarding these phone messages by
counsel for Respondent. According to Freire, “[o]n the message
I told him that what they were doing on Flatbush Avenue with
my trucks, with my time. And that he was fired.” When speak-
ing with Ortiz, Freire stated that he repeated “basically the
same thing. That they took the trucks away. He is on the last
notice. He’s fired.” When asked specifically whether he stated

18 Freire testified that his concern with the longer route stemmed
from the increased exposure to the possibility of getting into an acci-
dent. Freire further testified that in the past 2 years his trucks had three
or four accidents which increased his insurance premiums.
the words “I know what you did,” Freire replied, “I don’t re-
member if I told him exactly that.” Freire further testified that
he did not recall whether Ortiz said anything in response and
was so angry at the time that he really did not care what he said.
Respondent Meets with the Other Crew Members
On the following morning, Dominguez, Rosas, and Vazquez
were summoned to a meeting with Freire and shop foreman
Suarez. Freire asked the employees why they had gone out of
their way with the trucks on company time, with company
money. According to both Freire and Suarez, these employees
were told that if they did anything like this again, they would be
fired. According to the employees present, Freire expressed
anger that they had gone out of their way to do personal busi-
ness when they were supposed to be working in Manhattan, and
employees were told that they should not use working time to
do other things. None of these employees, however, testified
that they were told that they would be fired should there be any
further infractions. On cross-examination, Suarez was asked if
he knew what employees did when they “went out of their
way,” and stated: “Well I know they went to do something.
Their personal business or whatever they went to do. I don’t
know what they went to do.”
III. ANALYSIS AND CONCLUSIONS
The Unlawful Discharge of Alecc Ortiz
The complaint alleges that Respondent violated the Act by
discharging Ortiz because he sought the assistance of the Board
and filed a decertification petition, a contention which the Re-
spondent denies. Respondent argues, in essence, that Ortiz was
fired for on the job misconduct, while subject to what Respon-
dent characterizes as a “last chance” agreement, by appropriat-
ing Respondent’s employees, time, and trucks to run a personal
errand, in violation of company policy. Respondent argues that
the employees had no apparent valid reason for proceeding
back to the shop by taking a downtown bridge and that the
workers were obviously “in cahoots” with Ortiz to go to the
Board on the way back to the shop. Respondent further asserts
that the reason Ortiz coworkers were not similarly discharged is
twofold: unlike Ortiz, they were not subject to a last chance
agreement and, moreover, Respondent determined that due to
business concerns it could not afford to lose such a significant
component of its work force. Thus, Respondent argues, these
employees were warned and threatened with discharge should
they engage in similar misconduct in the future.
Section 8(a)(3) provides, in pertinent part, that it is “an un-
fair labor practice for an employer to discriminate in regard to
hire or tenure of employment or any term or condition of em-
ployment to encourage or discourage membership in any labor
organization.” Section 8(a)(4) of the Act provides that it is an
unfair labor practice for an employer “to discharge or otherwise
discriminate against an employee because he has filed charges
or given testimony under this Act.” To establish a violation of
either Section 8(a)(3) or (4), the Board utilizes the analytical
framework set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). See NLRB v. Transportation Mgmt. Corp., 462 U.S.
393, 395 (1983); see also American Gardens Mgmt.Co., 338
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
NLRB 644, 645 (2002) (Wright-Line analysis applies to claims
of discriminatory discharge under both Section 8(a)(3) and
8(a)(4)).
To meet its burden under Wright Line, the General Counsel
must first establish, by a preponderance of the evidence, that
the employee engaged in protected concerted activity, the em-
ployer was aware of that activity, and that such activity was a
substantial or motivating reason for the employer’s action.
Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999) (citations
omitted). Proof of an employer’s motive can be based upon
direct evidence or can be inferred from circumstantial evidence,
based on the record as a whole. Robert Orr/Sysco Food Ser-
vices, 343 NLRB 1183 (2004), enfd. mem. 179 LRRM (BNA)
2954 (6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB
846, 848 (2003); Ronin Shipbuilding, 330 NLRB 464 (2000).
The Board has long held that, where adverse action occurs
shortly after an employee has engaged in protected activity, an
inference of unlawful motive is raised. McClendon Electrical
Services, 340 NLRB 613 fn. 6 (2003), citing La Gloria Oil, 337
NLRB 1120 (2002), enfd. mem. 71 Fed Appx. 441 (5th Cir.
2003) (Table). Other factors which may similarly support such
an inference include inconsistencies between the proffered
reason for the discipline and other actions of the employer,
disparate treatment of certain employees compared with other
employees with similar work records or offenses, and deviation
from past practice. Embassy Vacation Resorts, supra at 848.
Once the General Counsel has made out the elements of a
prima facie case, the burden of persuasion then shifts to the
employer to “demonstrate that the same action would have
taken place even in the absence of the protected conduct.”
Septix Waste, Inc., 346 NLRB 494, 496 (2006) (quoting
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004);
Williamette Industries, 341 NLRB 560, 563 (2004); Wright
Line, supra. To meet its Wright Line burden, however, “[a]n
employer cannot simply present a legitimate reason for its ac-
tion but must persuade by a preponderance of the evidence that
the same action would have taken place even in the absence of
the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995),
enfd. mem. 99 F.3d 1139 (6th Cir. 1996). See also Manno Elec-
tric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
In the instant case, I find that the General Counsel has met its
initial burden under Wright Line of establishing that Ortiz dis-
charge was motivated, at least in part, by his protected conduct.
The Board’s approach to Section 8(a)(4) of the Act “has
been a liberal one in order to fully effectuate the section’s re-
medial purpose.” General Services, 229 NLRB 940, 941
(1977), relying on NLRB v. Scrivener, 405 U.S. 117, 124
(1972). Section 8(a)(4), an essential aspect of the statutory
scheme, is designed to “safeguard the integrity of the Board’s
processes.” Filmation Associates, 227 NLRB 1721 (1977) (it
provides a “fundamental guarantee” to those invoking the pro-
cedures of the Act; and the duty to preserve Board’s process
from abuse is a function of the Board and may not be delegated
to the parties or an arbitrator).
Mindful of these principles and practical concerns, the Board
and courts have found that Section 8(a)(4) is not limited to
protecting an employee who has filed charges or given testi-
mony. In Precision Fittings, Inc., 141 NLRB 1034, 1035 fn. 3
(1963), the Board specifically held that the protections of that
section of the Act would extend to employees who file decerti-
fication petitions. In that case, the Board additionally affirmed
the trial examiner’s conclusion that the discharge in question
violated Section 8(a)(3) of the Act as it, in pertinent part, en-
couraged membership in the incumbent union. See also
Aristocrat Inns of America, 146 NLRB 1599 (1964) (discharge
of employee for filing decertification petition held to violate
both Section 8(a)(3) and 8(a)(4) of the Act).
Thus, by filing the petition seeking to decertify Local 917,
Ortiz was engaged in conduct which is protected by the Act.
Moreover, the record establishes that when Respondent re-
ceived a copy of this petition, bearing Ortiz signature, it then
had knowledge of this protected conduct. This was subse-
quently reinforced during Freire’s telephone conversation with
Dominquez, where he asserted telling Ortiz “not to do it.”19 In
this regard, I do not credit Freire’s testimony that he failed to
understand the significance of the decertification petition at the
time. The petition was sent to Freire together with an attach-
ment explaining the nature of the document and advising that
procedures before the Board had been initiated, which included
the possibility of a formal hearing. As noted above, Respon-
dent’s counsel elicited testimony from Freire regarding his
prior experiences with unions and I conclude based upon this
testimony, together with his long tenure in the industry, that
Freire is not naïve in matters involving collective bargaining.
I further find that the record establishes animus toward Ortiz
protected conduct. As noted above, Respondent has had a long-
standing relationship with Local 917. I credit and give proba-
tive weight to Ortiz testimony that Local 917 was amenable to
concessions favorable to Respondent,20 and find that these an-
ticipated concessions together with a relatively settled collec-
tive-bargaining relationship would have caused Freire to have
concern regarding any possible decertification effort. In its
brief, Respondent argues that Respondent would have been
unaware of any potential intervening union at the time the peti-
tion was filed and, in this record, there is no evidence regarding
when Local 8–A sought to organize employees or moved to
intervene in this matter. Nevertheless, as noted above, I have
found that Freire is knowledgeable about union-related matters
and conclude that he would have been aware of the possibilities
inherent in a decertification process.
Moreover, the General Counsel has set forth direct proof of
Respondent’s animus toward Ortiz protected conduct by adduc-
ing Freire’s admission that he told Ortiz that whatever he did

19 As discussed in further detail below, under the circumstances
herein, I have concluded that this comment referred to the filing of the
petition.
20 Ortiz testimony in this regard was not objected to; nor was the un-
derlying fact—that the Union was amenable to reductions in pay and
benefits—rebutted by Respondent. Moreover, I credit Ortiz testimony,
which does not appear to be disputed by Respondent, that all the em-
ployees working in the shop at the time signed the petition in support of
decertification. This lends further support to a determination that Local
917 had announced concessions. Clearly, there would have been no
reason for such an announcement if they were not contemplated.
IBERIA ROAD MARKINGS CORP. 1015
that day at the Labor Board was going to get him fired. As
noted above, this statement was made almost immediately after
Freire learned that the petition had been filed, and accordingly
constitutes strong evidence of Freire’s motivation. McClendon
Electrical Services, supra.
Thus, I conclude that the General Counsel has established
the elements of a prima facie case that Ortiz was discharged for
his protected conduct. Accordingly, the burden now shifts to
the Respondent to establish, by a preponderance of the evi-
dence, that it would have discharged Ortiz notwithstanding any
protected conduct in which he may have engaged.
As noted above, Respondent argues that Ortiz was fired after
having previously been suspended and while subject to a last
chance agreement, because he admittedly engaged in further
misconduct by appropriating Respondent’s employees, time,
and trucks to run a personal errand.
As Respondent notes, the Board has long recognized the le-
gitimacy of an employer enforcing rules against the misuse of
company vehicles. In Stilley Plywood Co., 94 NLRB 932, 980
(1951), cited by Respondent, the Board found that the employer
lawfully discharged an employee who used a company vehicle
to drive to a union meeting. Similarly in Hertz Corp., 195
NLRB 96 fn. 2 (1972) and Pepsi Cola, 170 NLRB 1252, 1266
(1968), also cited by Respondent, the Board sustained the dis-
charges of employees who were fired for using company vehi-
cles to attend to personal matters during work hours in violation
of company policy. I note however, that all of these cases were
decided prior to Wright Line. For this, and other unrelated evi-
dentiary reasons, I find such authority to be of limited value in
assessing the strength of Respondent’s rebuttal to the elements
of General Counsel’s prima facie case.
Nevertheless, I find that Respondent’s stated concern with
employee use of work time for personal errands, coupled with
the alleged unauthorized use of its vehicles, presents a facially
legitimate basis for its determination to discharge an employee.
However, it is Respondent’s burden not merely to advance a
cognizable reason, but rather to persuade, by a preponderance
of the evidence, that this was in fact the real reason for the dis-
charge under consideration. Here, Respondent has failed to
meet that burden.
The most obvious evidentiary hurdle for Respondent to meet
involves Freire’s admission that in the message he left for Ortiz
he specifically stated that what Ortiz had done at the Labor
Board was going to get him fired. Under all the circumstances
herein, including the “stunningly obvious” timing,21 this consti-
tutes powerful evidence that the real reason Ortiz was fired was
because of his protected conduct, and not because of a misap-
propriation of employer resources. Freire summarily terminated
Ortiz without questioning him and I further note that Freire
admitted that when finally speaking with Ortiz he was so angry
that he could not recall whether Ortiz attempted to offer any
excuse for his conduct and further stated that he did not care
what Ortiz would have had to say, in any event. I infer that this
demonstrable, heightened level of animosity stemmed from the
fact that Ortiz had filed the petition.

21 NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970).
Freire’s account of his conversation with Dominguez, and
specifically his testimony that, he demanded to know, “[w]hy
do you take my trucks, my people and my time to the Labor
Board on Flatbush Avenue and J Street when you guys were
supposed to take the 59th Street Bridge to minimize the prob-
lems of having an accident” (which Freire characterized as his
“exact words”) simply did not have the ring of truth. Rather, the
evidence suggests that Freire’s discussion with Dominguez
related specifically to his displeasure regarding Ortiz filing of
the petition. As Freire acknowledged, Dominguez responded
that he had told Ortiz “not to do it.” It is obvious from the con-
text that this comment relates specifically to the filing of the
decertification petition (which is the singular thing Ortiz did
that the others did not), and Dominguez’s attempt to deflect the
responsibility for this undertaking onto Ortiz. Freire offered no
other specific testimony regarding anything else Dominguez
may have reported to him at this time (except for some vague
reference to Ortiz “problems”), or anything else the two of
them may have discussed. In this regard, I note that although
Dominguez was called as a witness by Respondent, he was not
questioned regarding his conversation with Freire. Under these
circumstances, where the content of this discussion is cited by
Respondent in support of its contentions regarding its motive
for firing Ortiz, and where Dominguez, as a current and long-
term employee, has a pecuniary interest in testifying favorably
for his employer,22 I draw an adverse inference from Respon-
dent’s unexplained failure to adduce corroborative testimony
from Dominguez on this issue. See International Automated
Machines, 285 NLRB 1122, 1123 (1987). I infer, therefore, that
had Dominguez been asked about this discussion and had testi-
fied truthfully, such testimony would have been adverse to
Respondent’s position herein, and conclude that Freire and
Dominguez specifically discussed the filing of the petition dur-
ing their conversation, and further, that Freire made his dis-
pleasure about this known to Dominguez.
When questioned by Respondent’s counsel about what he
said to Ortiz, Freire testified in essence that he questioned what
they were doing on Flatbush Avenue with his trucks and his
time, that Ortiz was on his “last notice” and was fired. Freire,
however, did not offer this testimony in a convincing manner:
he appeared hesitant and uncomfortable.23 By Freire’s own
admission, he told Ortiz that what he had done at the Labor
Board was going to get him fired. In that brusque statement
there was no reference to any final notice or misappropriation
of employer resources.
Respondent argues that the provisions of the collective-
bargaining agreement establish that the unauthorized use of

22 In finding that Dominguez would have the propensity to testify in
a fashion favorable to his employer, I note that he is among the most
senior of employees, who was not laid off in 2005. I also note that
Dominguez and Ortiz have a prior history of work-related animosity
and find this to be an additional reason why Dominguez would be
favorably predisposed toward his employer and would not attempt to
slant his testimony to benefit Ortiz.
23 In this regard I note that Freire testified on several occasions dur-
ing the course of the this consolidated hearing and his demeanor when
offering this testimony stood in contrast to what it appeared to be on
other occasions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1016
company vehicles for personal business is a dischargeable of-
fense, and further cites to Freire’s testimony that he is unaware
of any other circumstances of such unofficial use. While it is
not entirely clear to me that the express terms of the collective-
bargaining agreement fully support this contention, I have ac-
knowledged that Respondent has the prerogative to insist that
its employees use its time and equipment for job-related as-
signments and, as the Board has often held, it is not within the
purview of the trier of fact to substitute its business judgment
for that of the employer. See Super Tire Stores, 236 NLRB 877
fn. 1 (1978). Nevertheless, the unrebutted record evidence es-
tablishes that the drivers used the trucks for personal matters:
stopping for breakfast en route to work locations, driving to
lunch during their work shift, and stopping for a drink on the
way back to the shop. Moreover, there is no evidence that such
activities were out of the ordinary. Further, there is no evidence
that these stops and detours were subject to company scrutiny,
or that employees were ever told that they could not use the
trucks for such a purpose. Moreover, Dominguez testified,
without contradiction, that he was never questioned about his
selection of a route; that on other occasions had used downtown
bridges to return to the facility and that there was never one
particular route that the drivers were supposed to follow.24
Additionally, there is the fact that only Ortiz, the signatory
to the petition, was fired while the others were, at most, given a
verbal warning. Respondent argues that this discrepancy in the
level of discipline meted out stems from the fact that only Ortiz
was subject to a “last chance” agreement and further that, due
to business concerns, it could not afford to discharge an entire
crew of employees. In this regard, Respondent places signifi-
cant reliance upon the fact that employees were severely repri-
manded for their conduct on the following day and threatened
with discharge if they ever appropriated Respondent’s time and
trucks for personal errands again.25

24 Furthermore, there is no evidence that this has changed since the
events described herein.
25 In an apparent attempt to rationalize the disparate treatment of
Ortiz as compared with his coworkers, Respondent contends that in
“hindsight” it is obvious that the employees were “in cahoots” to go to
the Board as there was no other valid reason for taking a downtown
bridge on their way back to the shop, but further argues that Freire was
not cognizant of their complicity at the time. This argument is based
upon conjecture as there is no probative evidence that the employees, as
a group, planned to detour to downtown Brooklyn to enable Ortiz to
file the petition. Further, such an argument fails to lend support to
Respondent’s position herein. To the contrary, it highlights that there
are significant factual deficits in Respondent’s proffered defense. In
particular, Freire offered scant testimony as to what Dominguez may
have told him in their telephone discussion and, as noted above, none
was adduced from Dominguez. In this regard, the fact that Freire called
Dominguez in the first instance is indicative of the fact that he consid-
ered him, as foreman, responsible for the actions of the crew and the
route that was taken. Moreover, contrary to Respondent’s suggestion,
there is no evidentiary basis for me to conclude that Freire somehow
deemed or had any basis to consider that Ortiz was accountable for the
route taken back to the shop on that occasion. In light of the fact that
Respondent bears the burden of proof as to these matters, I find such
evidentiary deficits to be significant.
As an initial matter, I do not credit the testimony, offered by
Freire and Suarez, that employees were threatened with dis-
charge during this meeting. As noted above, Suarez offered an
exaggerated account of Ortiz involvement and misconduct in
the 2003 incident which led to his suspension, one which did
not comport with the contemporaneous account he had pro-
vided to Freire. I further fail to credit Suarez’s improbable as-
sertion that he did not know the nature of the “personal busi-
ness” that employees had engaged in and for which they were
being reprimanded. I find, therefore that Suarez, a co-owner of
the company and long term business associate of Freire’s, has a
propensity to offer false testimony if he believes it will support
Respondent’s position herein. Moreover, not one of the three
employees who testified regarding this meeting reported a
threat of discharge. I find that this is precisely the sort of warn-
ing that employees would find of significance and would tend
to recall. Again, I find such a lack of corroboration to be sig-
nificant. Based upon the foregoing, I find that Respondent’s
assertion, as stated in its brief, that the three employees were
“vehemently admonished” and “explicitly warned” that they
would be fired if they engaged in similar misconduct in the
future is not supported by the evidence.
Thus, I find that the other employees who, like Ortiz, took
Respondent’s time and trucks on a detour allegedly for the
purpose of running a personal errand were given scant disci-
pline. Unlike Ortiz they were not discharged, they were not
suspended, they were not issued a “last-chance” letter, no warn-
ing was placed in their file, and they were not threatened with
discharge. This lack of meaningful employee discipline stands
in sharp contrast to Ortiz termination. The disparate severity of
his punishment raises a strong inference of pretext.
Respondent’s counters this with reliance on Ortiz so-called
“last chance” letter. I find, however, that Respondent has failed
to sustain its burden of establishing that this would have pre-
cipitated Ortiz discharge had he not engaged in protected con-
duct, but simply had taken a longer route back to the shop and
stopped for a drink with his coworkers in downtown Brooklyn,
as did they. Nor does it, in my mind, sufficiently explain the
variance in the discipline meted out to employees.
In reaching this conclusion, I note that Ortiz admitted that he
understood that by agreeing to the terms of the letter, he was
acknowledging that he would be discharged if he engaged in
subsequent misconduct.26 However, this letter had been issued
3 years previously, without any intervening instances of
wrongdoing. There are other factors which militate against a
determination that this letter would have served as the basis for
Ortiz discharge absent his protected conduct. In particular, I
note that Freire testified that he rarely discharged employees,
and Respondent has presented no evidence regarding any other
instances of employee discipline (other than the earlier incident
involving Ortiz and Dominguez).27 Further supporting this

26 General Counsel argues that the terms of the letter are not as broad
in scope as Respondent suggests inasmuch as there is specific reference
to termination only for starting further fights or giving “any of his
superiors problems.”
27 Cf. Met West Agribusiness, Inc., 334 NLRB 84, 89 (2001), cited
by Respondent, where the Board found that the employer satisfied its
rebuttal burden based upon a final warning issued to an employee. In
IBERIA ROAD MARKINGS CORP. 1017
determination is the relatively light punishment meted out to
the others coupled with Respondent’s general lack of supervi-
sion of employees regarding routes taken or stops made during
the work day.
Thus, while Respondent has presented what appears on its
face to be a legitimate basis for its determination to discharge
Ortiz, there is strong, direct, and unrebutted evidence of unlaw-
ful motivation. This is coupled with a significant lack of cor-
roboration with regard to two important aspects of Respon-
dent’s proffered defense, in particular regarding what Freire
discussed with Dominguez in their initial conversation after the
petition was filed and with respect to the manner of discipline
issued to the other employees. Given these considerations, and
the logical inferences to be drawn from the other facts and cir-
cumstances of this case, as discussed above, I conclude that
Respondent has failed to sustain its burden of establishing that
it would have discharged Ortiz regardless of his protected con-
duct. Accordingly, I find that Respondent has violated Section
8(a)(1) (3) and (4) as alleged in the complaint. Accordingly, I
recommend that the challenge to Ortiz ballot be overruled. See
Regency Service Carts, 325 NLRB 617, 627 (1998).
IV. THE OTHER CHALLENGED BALLOTS
As noted above, Local 8A and the Petitioner challenged the
ballot Miguel Freire (Miguel) and Petitioner challenged the
ballot of Danny Travers (Travers).28 Travers’ ballot was chal-
lenged on the basis that he voluntarily quit his employment in
December 2005 to accept another job. The stated basis for the
challenge to Miguel’s ballot was that, as the son of the Presi-
dent and co-owner of the Employer, he is aligned with man-
agement.29
At the hearing Local 8–A raised the following additional is-
sues: (1) that the Employer is not in the construction industry
and therefore the Regional Director applied the incorrect voter
eligibility standard and (2) that a consideration of whether the
challenge to Travers’ ballot should be sustained properly in-
volves an inquiry into whether Travers abandoned interest in
continued employment by obtaining a job elsewhere while on
layoff and whether he manifested an intent not to return to work
for the Employer. In its posthearing brief, Local 8–A raises
additional arguments regarding the challenge to Miguel’s ballot
alleging that the challenge should be sustained because (1)
between the time that he was last employed and the date of the
election, Miguel had started his own sign hanging business, in
competition with the Employer and (2) Miguel did not work at
any time during the 12 month period immediately preceding the
voter eligibility date, and is therefore ineligible to vote under
the Daniel Construction formula applied by the Regional Di-
rector.

that instance, however, the employee in question had two infractions
within months of receiving the final warning. Moreover, the employer
had a history of treating other employees in a similar fashion.
28 Local 8–A contends that Travers is an ineligible voter herein, as
well.
29 It was additionally initially alleged that both Travers and Miguel
performed bargaining unit work only intermittently.
The 2005–2006 Lay Off and Recall
As noted above, the Employer’s employees are laid off dur-
ing the winter season. In 2005, this took place as of December
7, and was announced by the posting of a notice to employees
listing both those few employees who would remain employed
and those being laid off, in order of seniority. This notice was
prepared by Office Manager Maria Lago. Among those workers
laid off on this occasion were Miguel and Travers. At the time,
Miguel had the least seniority of all workers.30 That following
spring, Freire determined that, due to a downturn in business,
he required fewer employees, and recalled only 8 of 17 em-
ployees listed on the layoff list. As with layoffs, recalls are
done on the basis of seniority and neither Travers nor Miguel
were recalled that spring, and were not recalled at any time
prior to the election. At that time, based upon his position on
the seniority list, Travers was the next employee subject to
recall.
Local 8-A’s Challenge to the Voter Eligibility Formula
At the hearing, Local 8–A sought to adduce evidence relat-
ing to additional Employer business operations including sign
posting and sign painting. In response to an objection from the
Employer,31 I inquired as to the relevance of such testimony, at
which time counsel for Local 8–A made the following state-
ment:
It is our position that Daniel Construction is directed to con-
struction. And what we believe is that this is a typical 9(c) op-
eration, not a shape up or discrete jobs where crews are cre-
ated and then let go for particular jobs. What we have here is a
typical bargaining unit. A non-construction unit.
In its brief Local 8–A argues that even without being given
the opportunity to develop the record as to any additional types
of work performed by the Employer, it is clear from the testi-
mony that the Employer has a core group of employees that
come back year after year, and that there is no evidence of in-
termittent, as opposed to seasonal, employment or that a sub-
stantial number of the employees involved work for several
different employer’s during the year.32
Counsel for Local 8-A acknowledged, however, that no re-
quest for review of the Acting Regional Director’s Decision
and Direction of Election had been filed. Nor were there objec-
tions to the election. Accordingly, I ruled that I would not allow

30 As discussed in further detail below, Miguel had the least seniority
despite an initial 1999 hire date because he worked primarily during
summer vacations from college and according to the provisions of the
collective-bargaining agreement was ineligible to accrue seniority for
those years.
31 The objection was sustained.
32 Local 8–A apparently relies upon this argument only insofar as it
advances its position regarding the challenges under consideration
herein. As noted above, the record shows that, in addition to the three
employees who had remained employed during the winter months,
eight unit employees were recalled in 2006. Fourteen voters whose
ballots were not challenged voted in the election. Accordingly, it would
appear that several voters cast their ballots while on layoff status, pur-
suant to the Daniel Construction formula. There is no contention by
Local 8-A that any of the other voters who may have voted pursuant to
this standard should be deemed ineligible to vote herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1018
relitigation of the voter eligibility formula in the instant pro-
ceeding, and hereby affirm that ruling. See Sitka Sound Sea-
foods, 325 NLRB 685 (1998), where the Board affirmed the
Regional Director’s overruling of objections to an election
which were, in essence, an attempt to relitigate the eligibility
formula used therein, where the Board had previously denied
review as to that issue.33
Miguel Freire
Miguel, who is Freire’s son, also has a familial relationship
with two other owners of the Employer. The Excelsior list
submitted by the Employer indicates that during the time frame
of the election, Miguel and Freire lived on the same street, but
not at the same street address.34 Miguel attended college be-
tween 1999 and 2002 and worked only summers during this
time. The record establishes, however, that he was not the only
employee to have done so during this period. Miguel subse-
quently worked for the Employer on a seasonal basis, and it
appears from the record that this was during 2004–2005. Mi-
guel accrued no seniority during the years that he worked solely
during his summer vacation periods and consequently, had the
least seniority of all of the employees. While employed, Mi-
guel’s terms and conditions of employment were governed by
the collective-bargaining agreement with Local 917, as well as
other shop-wide practices. Thus, he worked a regular shift, the
same hours as other employees, earned the contractual wage
rate, and enjoyed contractual benefits. There is no evidence that
he enjoyed special privileges such as reduced work hours or
longer break or meal periods. The record additionally estab-
lishes that Miguel never worked as a foreman, had no supervi-
sory or managerial authority, and was a member of Local 917.
Ortiz alleged that Miguel was afforded special privileges
such as: “[g]oing to Spain. When they need him, he comes
whatever days he needs, like in the summer. When he used to
go to school and when they need people, he calls his son.” As
noted above, however, there is undisputed record evidence that
other laborers employed by the Employer have worked only
during vacation periods while attending school. Moreover,
Freire testified that notwithstanding the requirement in the col-
lective-bargaining agreement that vacations be taken during
winter months, he would allow employees to take vacation
during the summer as long as no other employee was taking off
at the same time.35 In mid-October 2005, Miguel was granted a
leave of absence to assist an injured older brother in running his
business. There is no evidence that any other employee has
been granted such a privilege; however the record does estab-

33 I note that in Steiny & Co., supra at 1328 fn. 16, the Board, citing
Dick Kelchner Excavating Co., 236 NLRB 1414, 1416 fn. 10 (1978)
stated that one exception to the application of the Daniel Construction
formula in the construction industry exists where the employer clearly
operates on a seasonal basis. Nevertheless, the time for Local 8-A to
have raised any such or related argument was during the underlying
representation case hearing or in a request for review of the Acting
Regional Director’s Decision and Direction of Election.
34 I take administrative notice of the Regional Director’s findings in
this regard.
35 Freire identified Ortiz, Dominguez, and Vazquez as being among
those employees who took vacations during the summer months, and
Ortiz confirmed that this was the case as to him.
lish that other employees have taken sick leave in order to care
for relatives. Miguel was subsequently laid off in December
2005, and has not been recalled since that time. In the summer
of 2006, Miguel, together with a partner, started his own busi-
ness installing street signs.
It is well settled that a “party seeking to exclude an individ-
ual from voting has the burden of establishing that the individ-
ual is, in fact, ineligible to vote.” Regency Service Carts, Inc.,
325 NLRB 617, 627 (1998) (quoting Golden Fan Inn, 281
NLRB 226, 230 fn. 24 (1986)).
The Board “has long hesitated to include the relatives of
management in bargaining units because their interests are
sufficiently distinguished from those of other employees.”
Palagonia Bakery, 339 NLRB 515, 536 (2003); R&D Trucking,
Inc., 327 NLRB 531, 532 (1999); T.K. Harvin & Sons, 316
NLRB 510, 533 (1995). “The greater the family involvement in
the ownership and management of the company, the more
likely the employee relative will be viewed as aligned with
management and hence excluded.” NLRB v. Acton Automotive,
469 U.S. 490, 494–495 (1985); Palagonia Bakery, supra at 536.
The Board however, does not exclude an employee simply
because he or she is related to a member of management.
International Metal Products Co., 107 NLRB 65 (1953).
Rather, the Board considers a variety of factors in deciding
whether an employee’s familial ties are sufficient to align his
interests with management and thus warrant his exclusion from
the bargaining unit. In this regard, the Board utilizes an “ex-
panded community of interest test” to determine whether rela-
tives of owners of closely-held corporations should be excluded
from the unit, weighing such factors as how high a percentage
of stock the parent or spouse owns, how many of the share-
holders are related to one another, whether the shareholder is
actively engaged in management or holds a supervisory posi-
tion, how many relatives are employed as compared with the
total number of employees, and whether the relative lives in the
same household or is partially dependent on the shareholder.
Futuramik Industries, Inc., 279 NLRB 185 (1986) (citing NLRB
v. Action Automotive, supra). An employee relative may be
excluded from the unit even though he or she enjoys no special
job related privileges, if other criteria establish that his interests
are aligned with management, NLRB v. Action Automotive,
supra at 495; see also Palagonia Bakery, supra at 536. In the
instant case, Miguel is a relative of management; thus, it need
not be shown that he enjoys job-related privileges in order to
find his interests more closely aligned with management and,
therefore, that he does not share a community of interest with
other bargaining unit employees. Id. (and cases cited therein).
Although it is not essential that job related privileges be
shown, it is however, an important factor considered by the
Board in assessing whether the employee in question shares a
sufficient community of interest with other employees. In Blue
Star Ready Mix, 305 NLRB 429, 430–431 (1991), the Board
overruled the challenge to the ballot of the grandson of one
owner (and nephew of another), finding that he shared a com-
munity of interest with other employees. In that instance, the
employee in question was a college student who lived with his
IBERIA ROAD MARKINGS CORP. 1019
owner-grandfather.36 Although he had started work at a slightly
higher wage than other employees, he was otherwise subject to
the same time, attendance, and disciplinary procedures and
received the same benefits. In the absence of any significant job
related privileges, the Board found this relative of management
shared a community of interest with other employees. Cf. Luce
& Sons, Inc., 313 NLRB 1355, 1356 (1994); R&D Trucking
Co., supra (relatives of management who enjoyed special job-
related privileges excluded from unit.)
In the instant case, Miguel is the son of one, and related to
two other owners of the Employer who collectively own 60
percent of the stock of the corporation. Moreover, Freire is
apparently the highest ranking manager of the Employer. Nev-
ertheless, there is insufficient probative evidence to establish
that Miguel received any job-related privileges as a result of his
relationship to Freire, or any of the other owners to whom he is
related. Although Miguel was able to work during his summer
vacations from college, this option was also available to other
employees. Similarly, although Miguel was apparently allowed
to take vacation time during his work season, Freire’s testi-
mony, which was corroborated by the Petitioner, was that other
employees could do so as well. Miguel was subject to the terms
and conditions of employment set forth in the Local 917 collec-
tive-bargaining agreement, including the contractual seniority
rules and at no time occupied a supervisory or managerial posi-
tion. Although Miguel was apparently allowed to take a leave
of absence to assist another family member who was recuperat-
ing from an injury, there is record evidence that other employ-
ees are allowed to take sick leave to care for themselves or
other family members. Under all the circumstances, therefore, I
do not view this as a job related privilege that would disqualify
Miguel from eligibility in light of the other factors which would
militate toward his placement in the unit. Blue Star Ready Mix,
supra. I further note that although Freire testified that the two
currently share a home, the Excelsior list submitted by the Em-
ployer showed that Miguel and Freire did not live together at
the time of the election, although they resided on the same
street. Nor is there evidence that Miguel was a dependent of
Freire’s at any relevant time. Cf. Futuramik Industries, supra at
186.
In its brief, Local 8–A apparently contends that the Regional
Director erred in finding that Miguel met the Daniel Construc-
tion eligibility formula based upon December 2005 payroll
records. Relying upon these and prior records, the Regional
Director found that Miguel was employed for at least 45 days
during the 24 months immediately preceding the October 19,
2006 election eligibility date, and had “some employment”
during the 12 months preceding that date, consisting of 40
hours during the payroll period ending December 10, 2005. As
Local 8–A notes in its brief, the hours in question were listed
under a different classification from that of other employees
and at the hearing Office Manager Lago testified that this pay-

36 The employee in question additionally assisted in caring for his
grandparents. The Board found that this assistance was voluntary and
not related to the performance of his job duties.
ment was for accrued vacation time. The Employer’s payroll
records otherwise show that Miguel last worked during the
payroll period ending October 15, 2005 (with a pay date of
October 21), and that during this period he worked 24 hours on
unspecified days. Thus, Local 8–A argues Miguel was not em-
ployed during the 12-month period immediately preceding the
voter eligibility date and therefore he is an ineligible voter
herein.
The issue of whether Miguel’s work history satisfies the
Daniel Construction voter eligibility formula, raised for the
first time in Local 8–A’s posthearing brief, is not arguably en-
compassed by those issues set for hearing by the Regional Di-
rector. Moreover, although Local 8–A may have a valid claim
that it would not have had access to the underlying evidence so
as to enable it to advance such an argument as an initial matter,
both the payroll records and Lago’s testimony became part of
the record during the course of the hearing. This newly-asserted
basis for the challenge to Miguel’s ballot was not raised by
Local 8–A at any time where the other parties could be pro-
vided with notice or have an opportunity to respond or to pre-
sent evidence in response to such assertions and thus, was not
litigated herein. Local 8–A has provided no legal authority to
persuade me that it would be proper to consider this issue under
such circumstances. I conclude therefore, that even if I were to
assume that the evidence would support Local 8–A’s conten-
tions in this regard,37 it is not appropriate for me to consider
this newly asserted and clearly not litigated basis for the chal-
lenge to Miguel’s ballot. See, e.g., J.K. Pulley Co., 338 NLRB
1152, 1153 (2003) (citing Precision Products Group, 319
NLRB 640 (1995).38
Based upon the foregoing, I conclude that the Petitioner and
Local 8–A have failed to meet their respective burdens of es-
tablishing that Miguel is not an eligible voter herein. Accord-
ingly, I recommend that the challenge to his ballot be over-
ruled.
Danny Travers
Travers had been employed as a laborer with the Employer
since 2001. Freire, Lago, and Ortiz all offered testimony that at
the time of his layoff in December 2005, Travers had not quit
his employment. He applied for unemployment benefits later
that winter, and sought and obtained employment as a chef.
Ortiz testified that, in April 2006, he heard “rumors” that
Travers had quit. A few months later, during the summer, Ortiz
and his fellow crew members had occasion to meet Ortiz for

37 The payroll records and other evidence relied upon by Local 8–A,
establish that there is some ambiguity as to whether Miguel was em-
ployed or would be deemed to have been employed during the 12-
month period immediately preceding the election eligibility date. How-
ever, as noted above, as this issue was not litigated it remains an open
question. In any event, Local 8–A, as the party asserting the basis for
the challenge, would have the burden of proof in this matter.
38 Local 8–A additionally raises the argument that Miguel is ineligi-
ble to vote because, at the time of the election, he was the part-owner of
a sign-hanging company. Again, this contention, based upon evidence
adduced at the hearing, is plainly beyond the scope of those issues set
for hearing and litigated herein. In any event, the mere fact that Miguel
may have been the co-owner of another business does not render him
an ineligible voter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1020
lunch. According to Ortiz, at this time Travers stated that he
was going to culinary school and enjoyed being a chef. Accord-
ing to Freire, at no time did Travers notify the Employer that he
did not intend to return to work. Travers did not testify herein,
and there is no further substantive testimony regarding his
status at any relevant time.
Petitioner challenged Travers’ ballot on the grounds that he
had voluntarily quit his employment prior to the election. At the
hearing in this matter, Local 8–A raised a secondary argument
to the effect that Travers evinced an intention not to return to
work for the Employer, and that this renders him an ineligible
voter herein. In its brief, Local 8–A raises the further argument
that the challenge to Travers’ ballot should be sustained be-
cause he was not called back to work in December 2006 be-
cause of seasonal, weather-related issued but because of a
downturn in business that necessitated fewer employees. Local
8-A argues that where there is a layoff caused by a decline in
the amount of available work, the employer does not have an
intent to recall the employee and there is no reasonable expec-
tation of working in the same workplace in the future.
The record evidence establishes that Travers was laid off for
the winter season in December 2005, along with most of Re-
spondent’s other employees. Both Freire and Lago testified that
Travers never informed them that he had quit his employment.
Ortiz stated on cross-examination that Travers never said that
he was quitting in December 2005.
Based upon the record herein, there is insufficient probative
evidence that Travers voluntarily quit his employment prior to
the last job for which he was employed, Daniel Construction,
supra; Steiny & Co., supra. I recommend, therefore, that the
challenge to his ballot be overruled.39
CONCLUSIONS OF LAW
1. The Respondent/Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 917 and Local 8–A are each labor organizations
within the meaning of Section 2(5) of the Act.
3. By discharging Alecc Ortiz because he filed a decertifica-
tion petition with the Board, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.

39 As noted above, in its brief Local 8-A further argues that the chal-
lenge to Travers’ ballot be sustained because he did not have a reason-
able expectation of recall due to economic exigencies. This argument is
subsumed by the Regional Director’s application of the Daniel Con-
struction formula, which determines voter eligibility. Moreover, such
an argument was not previously alleged by either the Petitioner or
Local 8–A as a basis for a challenge to Travers’ ballot, nor is it argua-
bly encompassed by the stated basis for challenge and was not litigated
herein. Accordingly, I find that this issue is not properly before me.
J.K. Pulley Co., supra.
The Respondent having discriminatorily discharged Ortiz, it
must offer him reinstatement and make him whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended40
ORDER
The Respondent, Iberia Road Markings Corp., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employ-
ees to encourage or discourage membership in any labor or-
ganization or for soliciting or obtaining signatures or filing with
the National Labor Relations Board any petition for decertifica-
tion of a labor organization.
(b) In any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act
(a) Within 14 days from the date of the Board’s Order, offer
Alecc Ortiz full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privilege previ-
ously enjoyed.
(b) Make Alecc Ortiz whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge and
within 3 days thereafter notify Ortiz in writing that this has
been done and that the discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Brooklyn, New York copies of the attached notice
marked “Appendix.”41 Copies of the notice, on forms provided

40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
41 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
IBERIA ROAD MARKINGS CORP. 1021
by the Regional Director for Region 29 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 2,
2006.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the challenges to the bal-
lots of Alecc Ortiz, Miguel Freire, and Danny Travers be over-
ruled and that they be opened and counted.
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 No-
tice.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against
employees to encourage or discourage membership in any labor
organization or for soliciting or obtaining signatures or filing
with the National Labor Relations Board any petition for decer-
tification of a labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
WE WILL Within 14 days from the date of the Board’s Order,
offer Alecc Ortiz full reinstatement to his former job, or if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
lege previously enjoyed.
WE WILL make Alecc Ortiz whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
and WE WILL within 3 days thereafter notify Ortiz in writing that
this has been done and that the discharge will not be used
against him in any way.
IBERIA ROAD MARKINGS CORP.