Kajima Engineering & Construction

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1604 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1604
Kajima Engineering and Construction, Inc. and In-
ternatiol Union of Operating Engineers, Local
12, AFL–CIO–CLC. Cases 28–CA–14029 and
28–CA–14076
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On January 29, 1998, Administrative Law Judge Bur-
ton Litvack issued the attached decision. The Respon-
dent, the General Counsel, and the Charging Party filed
exceptions, supporting briefs, and answering briefs. The
Respondent and the Charging Party also filed reply
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
The General Counsel and the Charging Party except to
the judge’s failure to find that the layoff of employee
Todd Ewoldt violated Section 8(a)(3) and (1) of the Act.
The judge concluded that the General Counsel had not
met its burden of establishing that Ewoldt’s union activi-
ties were a motivating factor in the Respondent’s action
against him because there was no evidence showing that
the Respondent had knowledge of Ewoldt’s union activi-
ties. He therefore recommended that this complaint alle-
gation be dismissed.
The General Counsel contends that the Board should
infer from all of the circumstances, including evidence of
the Respondent’s demonstrated union animus as reflected
in the numerous 8(a)(1) violations found by the judge,
and the timing of the layoff, not only that the Respondent
knew of Ewoldt’s protected union activities or sympa-
thies, but that this knowledge was the true motive behind
the Respondent’s selection of Ewoldt for layoff. The
Charging Party also argues that the judge committed re-
versible error by his exclusion of relevant testimony from
Ewoldt regarding his conversations with the Respon-
dent’s superintendent, Bruce Kellogg, about the Union
and Ewoldt’s union sympathies or activities. The Re-
spondent, in opposing the General Counsel’s and the
Charging Party’s exceptions, contends that the judge was
correct in his dismissal of the 8(a)(3) and (1) allegation
because Ewoldt was laid off due to lack of work. For the
following reasons, we find merit in the General Counsel
and the Charging Party’s exceptions.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Excel Container, Inc., 325 NLRB 17 (1997).
It is well established that where there is no direct evi-
dence, knowledge of an employee’s union activities may
be proven by circumstantial evidence from which a rea-
sonable inference may be drawn. BMD Sportswear
Corp., 283 NLRB 142 (1987), enfd. 847 F.2d 835 (2d
Cir. 1988); and Montgomery Ward & Co., 316 NLRB
1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996).
Such circumstances may include the employer’s demon-
strated knowledge of general union activity, the em-
ployer’s demonstrated union animus, the timing of the
discharge in relation to the employee’s protected activi-
ties, and the pretextual reasons for the discharge asserted
by the employer. Greco & Haines, Inc., 306 NLRB 634
(1992); and E. Mishan & Sons, 242 NLRB 1344, 1345
(1979).
Applying the above criteria here, we find, contrary to
the judge, compelling circumstantial evidence that war-
rants an inference that the Respondent knew of or at least
suspected Ewoldt of engaging in union activities or har-
boring union sympathies and that it terminated him be-
cause of those activities in violation of Section 8(a)(3)
and (1).3 The evidence reveals that the Respondent har-
bored animus against the Union as demonstrated in the
judge’s findings of numerous 8(a)(1) violations. Specifi-
cally, the Respondent unlawfully interrogated employ-
ees, including Ewoldt, in an attempt to ascertain how
they were going to vote in the October representation
election. In addition, the Respondent threatened the em-
ployees with plant closure and job loss if they chose the
Union as their bargaining representative, promised em-
ployees increased wages and benefits if they rejected the
Union, and threatened not to negotiate in good faith with
the Union. Further, the Respondent discharged employ-
ees Robert Atteberry and Robert Rupp in violation of
Section 8(a)(3) and laid-off employees Robert Hickman,
Dan Billsby, Jim Mathers, Guy Kennedy, Justin McPhie,
and Bucky Taylor in violation of Section 8(a)(5).
We also find that the alleged reason proffered by the
Respondent for Ewoldt’s layoff does not withstand scru-
tiny. Ewoldt was one of the Respondent’s most senior
employees on its Del Webb project, having been hired in
August 1995. He was a 637D scraper operator and pos-
sessed the ability to operate the Respondent’s other
heavy equipment, including blades, bulldozers, water
pulls, and loaders. On December 9, 1996,4 the Respon-
3 We agree with the Charging Party’s contention that the judge erred
in excluding testimony regarding conversations between Ewoldt and
Superintendent Kellogg, which could have established direct evidence
of the Respondent’s knowledge of Ewoldt’s union sympathies. How-
ever, in view of our conclusion that the General Counsel has otherwise
established a showing of such knowledge, we find that a remand to the
judge for a reopening of the record is not necessary.
4 All dates are in 1996 unless otherwise indicated.
331 NLRB No. 175
KAJIMA ENGINEERING & CONSTRUCTION 1605
dent’s superintendent, Bill Matovich, told Ewoldt that he
was being laid off “as our job was winding down and we
were out of scraper work.” As the judge noted, however,
the Respondent’s past practice when a job was winding
down was to transfer the employee to another jobsite and
that layoffs seldom, if ever, occurred. Further, the judge
credited Ewoldt’s testimony that he was the most senior
employee at the Del Webb building site, and that em-
ployees with lesser seniority and experience, some of
whom were trained by Ewoldt, were retained by the Re-
spondent. Regarding the Respondent’s claim that the
work was winding down, the judge found that during the
week prior to Ewoldt’s layoff, the Respondent operated
two 637D scrapers each day; and that from the date of
Ewoldt’s layoff (December 9) through January 6, 1997,
the Respondent continued to operate two 637D scrapers
almost every day with lesser experienced employees than
Ewoldt.
Moreover, Matovich’s testimony establishes that the
Respondent had other ongoing projects that continued
through January 1997 and required the operation of
scraper machines. Thus, it is clear that the Respondent
had scraper work at the Del Webb site and at other pro-
jects that Ewoldt could have performed.
We note, further, that the Respondent gave shifting
reasons for Ewoldt’s selection for layoff. Matovich testi-
fied that the only reason Ewoldt was selected was that
the job was winding down. Subsequently, the Respon-
dent’s project manager, John Prlina, belatedly asserted
that Ewoldt was selected for layoff because of excessive
absenteeism. However, as the judge found, not only did
the Respondent fail to put into evidence any of Ewoldt’s
attendance records, but also Prlina admitted that he had
only reviewed Ewoldt’s records the day before he testi-
fied. Under these circumstances, we find that the Re-
spondent’s shifting reasons for selecting and laying off
Ewoldt were pretextual in nature and that, given the evi-
dence of union animus, we are warranted in inferring an
improper motive for Ewoldt’s layoff. Whitesville Mill
Service Co., 307 NLRB 937 (1992).
In making this finding, we rely on the fact that
Ewoldt’s layoff occurred soon after the Union was certi-
fied as the employees’ bargaining representative, and that
it occurred in the context of other discriminatory dis-
charges. Specifically, the Union won the election held on
October 24, and 1 day later the Respondent unlawfully
discharged employees Robert Rupp and Robert Atte-
berry. On November 4, the Union was certified as the
collective-bargaining representative, and on December 6
the Respondent laid off Ewoldt.
In sum, under the “confluence of circumstances”5 in
this case, including the fact that the Respondent re-
sponded to the Union’s organizing campaign and certifi-

5 Abbey’s Transportation Services, 284 NLRB 698 (1987), enfd. 837
F.2d 575 (2d Cir. 1988).
cation with demonstrated unlawful threats, promises, and
that the Respondent’s asserted reasons for Ewoldt’s lay-
off were pretextual, we find a sufficient basis to infer
knowledge of Ewoldt’s union activity or sympathy on the
part of the Respondent. Therefore, we conclude that the
General Counsel established that Ewoldt’s union activi-
ties were a motivating factor in the Respondent’s deci-
sion to lay him off. We further find, in the absence of
any legitimate basis for Ewoldt’s layoff, that the Re-
spondent has not met its burden of demonstrating that the
layoff would have occurred even in the absence of
Ewoldt’s protected conduct. Accordingly, we find that
Ewoldt’s layoff violated Section 8(a)(3) and (1) of the
Act. BMD Sportswear Corp., supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Kajima Engineering and Construction, Inc.,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding their union
sympathies and the union sympathies of their fellow em-
ployees.
(b) Threatening its employees with closure of its Las
Vegas operations if they select the Union as their bar-
gaining agent.
(c) Threatening its employees with loss of their jobs if
they select the Union as their bargaining representative.
(d) Threatening its employees that it would be less
competitive, resulting in probable cutbacks and layoffs,
in the residential construction market if they select the
Union as their bargaining representative.
(e) Informing its employees that it would drag its heels
and prolong negotiations forever and that it was, by law,
only required to bargain with the Union once a month for
an hour, thereby threatening its employees with the futil-
ity of selecting the Union as their bargaining representa-
tive.
(f) Promising its employees a wage increase and fully
paid medical and dental insurance if they voted against
the Union as their bargaining representative.
(g) Discharging its employees because it believes they
have proponents of the Union amongst its employees and
by discharging other employees in order to disguise its
actual reason for discharging the employees whom, it
believes, are leading union proponents.
(h) Laying off its employees for lack of work without
giving prior notice of each layoff to the Union and, prior
to each layoff, affording the Union an opportunity to
bargain regarding the decision and the effects of the lay-
off.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1606
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Robert Atteberry, Robert Rupp, Todd Ewoldt, Robert
Hickman, Dan Billsby, Jim Mathers, Guy Kennedy,
Justin McPhie, and Bucky Taylor full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Robert Rupp, Todd Ewoldt, Robert Hick-
man, Dan Billsby, Jim Mathers, Guy Kennedy, Justin
McPhie, and Bucky Taylor whole for any loss of earn-
ings and other benefits suffered as a result of their unlaw-
ful discharges and layoffs, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and layoffs, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discharges/layoffs will not be used against them in any
way.
(d) On request, bargain with the Union in good faith
about the decisions to lay off employees Robert Hick-
man, Dan Billsby, Jim Mathers, Guy Kennedy, Justin
McPhie, and Bucky Taylor and about the effects of the
layoffs.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under terms of this Order.
(f) Within 14 days after service by the Region, post at
its office in Las Vegas, Nevada copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
to all current employees and former employees employed
by the Respondent at any time since October 25, 1996.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the consolidated
complaint is dismissed insofar as it alleges that Respon-
dent terminated its employee, Todd Ewoldt, in violation
of Section 8(a)(1) and (3) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate our employees as to their
union sympathies and the union sympathies of their fel-
low employees.
WE WILL NOT threaten our employees with closure
of our Las Vegas operations if they select International
Union of Operating Engineers, Local 12, AFL–CIO as
their bargaining representative.
WE WILL NOT threaten our employees with loss of
their jobs if they select the Union as their bargaining rep-
resentative.
WE WILL NOT threaten our employees that we will
be less competitive, resulting in probable cutbacks and
layoffs, in the residential construction market if they se-
lect the Union as their bargaining representative.
WE WILL NOT inform our employees that we will
drag our heels and prolong contract negotiations with the
Union or that we are, by law, only required to bargain
with the Union once per month for an hour, thereby
threatening our employees with the futility of selecting
the Union as their bargaining agent.
WE WILL NOT promise our employees a wage in-
crease and fully paid medical and dental insurance if they
vote against the Union as their bargaining representative.
WE WILL NOT discharge our employees because we
believe they are leading proponents of the Union or dis-
charge other employees in order to disguise our actual
KAJIMA ENGINEERING & CONSTRUCTION 1607
intent for discharging employees, who, we believe, are
Union proponents.
WE WILL NOT lay off employees for lack of work
without giving prior notice to the Union and without af-
fording the Union a prior opportunity to bargain over the
decision to lay off employees and the effects of said lay-
offs.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer our employees, Robert Atteberry,
Robert Rupp and Todd Ewoldt, Hickman, Billsby, Math-
ers, Kennedy, McPhie, and Taylor, immediate and full
reinstatement to their former jobs or, if those no longer
exist to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and WE WILL make them whole,
with interest, for any loss of earnings and other benefits
resulting from their discharges.
WE WILL, within 14 days from the date of the
Board’s Order, remove from the files any references to
the unlawful discharges and layoffs, and WE WILL,
within 3 days thereafter notify the employees in writing
that this has been done and that the discharges/layoffs
will not be used against them in anyway.
WE WILL, on request, bargain with the Union in good
faith about the decisions to lay off our employees Robert
Hickman, Dan Billsby, Jim Mathers, Guy Kennedy,
Justin McPhie, and Bucky Taylor and about the effects of
said layoffs.
KAJIMA ENGINEERING AND
CONSTRUCTION, INC.
David Lujan, Scott Feldman, and Steve Wamser, Esqs., for the
General Counsel.
John Erickson and Kenneth Ivory, Esqs., of Henderson, Ne-
vada, for the Respondent.
David Koppelman, Esq., of Pasadena, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The origi-
nal, first and second unfair labor practice charges in Case 28–
CA–14029 were filed by International Union of Operating
Engineers, Local 12, AFL–CIO (the Union) on December 5 and
13, 1996, and January 28, 1997, respectively, and the unfair
labor practice charge in Case 28–CA–14076 was filed by the
Union on January 14, 1997. Based on the unfair labor practice
charges, the Regional Director for Region 28 of the National
Labor Relations Board (the Board) issued a consolidated com-
plaint, alleging that Kajima Engineering and Construction, Inc.
(the Respondent) engaged in acts and conduct violative of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act). Respondent timely filed an answer, denying the
alleged unfair labor practices. As scheduled, a hearing was
held before me on April 29 and 30 and May 1, 1997, in Las
Vegas, Nevada. At the hearing, all parties were allowed to
examine and to cross-examine all witnesses, to present all rele-
vant oral and documentary evidence,1 to argue their legal posi-
tions orally, and to file posthearing briefs. The latter docu-
ments were filed by counsel for each party and have been care-
fully considered. Accordingly, based on the entire record, in-
cluding the posthearing briefs and my observations of the tes-
timonial demeanor of the several witnesses, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of California corporation, is engaged in
the heavy construction industry and maintains an office and
place of business in Las Vegas, Nevada. In the normal course
and conduct of its business operations during the 12-month
period ending December 5, 1996, Respondent derived gross
revenues in excess of $500,000 and purchased and received at
its Las Vegas, Nevada place of business goods and products
valued in excess of $50,000, directly from sources outside the
State of Nevada. Respondent admits that it has been, at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The consolidated complaint alleges and counsel for the Gen-
eral Counsel argue that Respondent engaged in acts and con-
duct violative of Section 8(a)(1) of the Act by informing em-
ployees that, if they selected the Union as their bargaining rep-
resentative, it would close the Las Vegas facility; by interrogat-
ing employees about their own union activities and sympathies
and those of their fellow employees; by informing employees
that, if they rejected the Union as their bargaining representa-
tive, it would give employees a pay raise and certain health
insurance benefits; by informing employees that, since they
were not professional enough to work for the Union, they
would be laid off if the employee selected the Union as their
bargaining representative; by informing employees that Re-
spondent would be less competitive if they selected the Union
as their bargaining representative; and by informing employees
that, if they selected the Union as their bargaining representa-
tive, it would only do the bare minimum and prolong contract
negotiations as long as possible. Further, the consolidated
complaint alleges, and counsel for the General Counsel argue,
that Respondent engaged in conduct violative of Section 8(a)(1)
and (3) of the Act by discharging employees Robert Atteberry
and Robert Rupp on October 25, 1996, and employee Todd
Ewoldt on December 9, 1996, because each engaged in support

1 In their posthearing brief, counsel for Respondents assert that “Re-
spondent’s attempt to present evidence and make a record . . . was
severely limited by the court.” While it is true that I voiced skepticism
at aspects of Respondent’s defense regarding the alleged violations of
Sec. 8(a)(1) and (5) of the Act and closely questioned counsel as to
their contentions, I have been unable to find, and counsel failed to point
out, one instance in the record where Respondent was not permitted to
offer evidence as to their defense to the consolidated complaint allega-
tion. Indeed, there were several occasions, whether after some oral
argument or in overruling objections from counsel for the General
Counsel or counsel for the Union, in which I specifically noted that
Respondent should be permitted to make its record on the issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1608
for the Union. Finally, the consolidated complaint alleges and
counsel for the General Counsel argue that Respondent en-
gaged in conduct violative of Section 8(a)(1) and (5) of the Act
by unilaterally, and without bargaining with the Union, chang-
ing its bargaining unit employees’ terms and conditions of em-
ployment and laying off employees Robert Hickman, Dan
Billsby, Jim Mathers, Guy Kennedy, Justin McPhie, and Bucky
Taylor and by laying off the employees without notice to and
offering to bargain with the Union over its decision to lay off
said employees and the effects of the layoffs. Respondent de-
nies that it engaged in any unfair labor practices and contends
that the terminations of employees Atteberry and Rupp were
based on their refusals to perform work assignments, that em-
ployee Ewoldt was laid off due to a lack of work, and that, as
such resulted from a change in the direction of its business
operations, it was not obligated to bargain over the layoffs of
employees Hickman, Billsby, Mathers, Kennedy, McPhie, and
Taylor.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a wholly owned subsidiary of Kajima USA,
which, in turn, is a wholly owned subsidiary of Kajima, Inc., a
Japanese corporation, is engaged in the heavy civil construction
industry throughout the United States, performing earth mov-
ing, excavation, and earth leveling work on projects such as
bridges, tunnels, and highways. Through the fall of 1996, Re-
spondent, which was incorporated in 1984 and has its corporate
headquarters in Pasadena, California, maintained four regional
offices, including one in Las Vegas, Nevada,2 and 15 project
offices throughout the country. The record establishes, with
regard to Respondent’s Las Vegas office, that Lee Atkins was
the regional manager until December 1, 1996, at which time he
was demoted to a project manager position, John Prlina has
been the project manager in charge of the earth work depart-
ment, and Bill Matovich has been the superintendent in charge
of earth moving operations in the Las Vegas area3 and that, in
December 1996, concurrent with the downgrading of the Las
Vegas office from that of a regional to a project office, Take-
fumi Takuma, a corporate officer, was transferred to Las Vegas
in order to supervise the project managers' work and overall
office management. The record further establishes that, subse-
quent to the filing of a representation election petition, in Case
28–RC–5455, by the Union, seeking to become the collective-
bargaining representative of Respondent’s employees, who
perform the work traditionally performed by operating engi-
neers, including but not limited to equipment operators, me-
chanical and maintenance personnel, surveyors, and grade
checkers, in southern Nevada, an election was conducted on
October 24, 1996, and that the Union was selected by the em-
ployees as their exclusive collective-bargaining representative,

2 The types of projects upon which Respondent worked in the Las
Vegas, Nevada (southern Nevada) area appear to have differed signifi-
cantly from the types of projects on which it worked in other areas of
the country. Thus, while elsewhere Respondent normally worked on
long duration public works projects with bid and project costs in the
millions of dollars, its work in southern Nevada was normally short
duration residential type jobs with bid prices normally far below $1
million.
3 Respondent admits that at all times material Atkins, Prlina, and
Matovich have been supervisors and its agents within the meaning of
Sec. 2(11) and (13) of the Act.
with the result certified by the Regional Director for Region 28
on November 4, 1996.
The consolidated complaint alleges that Respondent commit-
ted several violations of Section 8(a)(1) of the Act prior to and
on October 24, the day of the election. In this regard, there is
no dispute that Respondent conducted a preelection mandatory
meeting for eligible voters at the Mardi Gras Hotel in Las Ve-
gas on Thursday, October 17. Atkins, Prlina, and Matovich
conducted the meeting in one of the hotel’s meeting room, with
Atkins giving a short speech and answering employee ques-
tions. Brent Shreeve, who worked for Respondent from May
through December 1996 initially as a “blade” operator and then
as a foreman on a Del Webb jobsite,4 testified that Atkins
“stated that if the Union was brought in to [sic] the company
that half of the work force would be laid off because they could
not compete with fellow contractors around town and the other
half of employees would be laid off because their skills are not
qualified to be Union represented.” Alleged discriminatee,
Robert Rupp, during cross-examination, recalled Lee Atkins
saying “that we didn’t really want to sway either way on the
Union but . . . that if we did go with the Union . . . there might
be some cutbacks. Kajima would not be as competitive as they
were in the residential” construction market. Later, during
cross-examination, Rupp testified that Atkins’ above comment
came as a response to a question regarding possible layoffs.
Further, asked if Atkins indicated that a certain course of action
would follow union certification, the alleged discriminatee
recalled the former saying “if we go Union we wouldn’t be
competitive. They’d have to cut back on their crew. They
wouldn’t have as much work.”5 Finally, when asked, by Re-
spondent’s counsel, if Atkins said anything about pending ne-
gotiations, Rupp testified he averred “that they could drag their
heels and make it go on forever.” Also, alleged discriminatee,
Todd Ewoldt, testified regarding Lee Atkins’ comments during
the Mardi Gras Hotel meeting, recalling that the latter did most
of the speaking about the Union, saying, about contract negotia-
tions, “to show good will he would only have to give five min-
utes a month toward negotiations. He discussed also a cutback
in work . . . as they would have to start bidding different pro-
jects other than residential if they were going to go Union.”6
Asked if Atkins said what result would follow a cutback in work,
Ewoldt replied, “layoffs, cut back in workforce.” During cross-
examination, Ewoldt recalled Atkins saying that electing the
Union would effect the competitiveness of the company “and that
they would have to focus on another line of construction.”
Lee Atkins, who recalled the meeting lasting for over an
hour and a quarter, John Prlina, and Bill Matovich testified
regarding Atkins’ comments during the preelection Mardi Gras
Hotel employee meeting. With regard to the matter of Respon-
dent’s ability to compete if its employees voted for union repre-
4 Respondent admitted that, as a foreman, Shreeve was a supervisor
and its agent within the meaning of Sec. 2(11) and (13) of the Act.
Shreeve’s credibility is a point of contention here. In this regard, he
testified that he had been attempting to become a member of the Union
for 17 years, that, prior to quitting his job with Respondent, he placed
his name on the Union’s out-of-work list, and that, subsequent to quit-
ting his job, he became a member of the Union in order to make it
easier for him to find work.
5 Rupp recalled that Atkins said such would “probably” occur.
6 Ewoldt said that, as he entered the meeting room, he also heard
Matovich saying to another employee “that we would not have any
more residential work.”
KAJIMA ENGINEERING & CONSTRUCTION 1609
sentation, while Atkins recalled averring that, if such were to
happen, there was a “possibility” that Respondent would be less
competitive, Matovich recalled the former saying that, if the
Union forced Respondent to pay higher wages, Respondent
wouldn’t receive as many projects in a competitive market and
that, if employees wanted the Union, the Company would not
be as competitive and might lose some work. According to
Prlina, Atkins spoke about an effect of becoming a union con-
tractor, saying such might force Respondent “to look at . . .
different markets than we are currently in . . . .” Prlina recalled
employee questions regarding a 401(k) retirement plan, future
raises, and health insurance. Atkins testified that employees
asked questions regarding the possibility of a raise because
“basically we hadn’t given any raises out there” and regarding
health insurance coverage, specifically whether Respondent
would be willing to pay the entire cost instead of the current
program pursuant to which the employees were responsible for
half the cost. Asked if he said that the employees would not be
professional enough to work for the Union, Atkins said “not in
those words,” but “I believe I did make the comment that once
we went Union . . . there was probably people among us that I
would not call out as a Union operator at the higher wage . . . .”
Further, while denying saying Respondent would do the bare
minimum to prolong contract negotiations as long as possible,
Atkins admitted saying his understanding was that “by law,
that at least once a month we have to sit down with the Union
and show good faith efforts of negotiations for at least an hour
per month.”
Robert Rupp recalled two similar instances of interrogation
by management officials prior to the election. According to
him, the first occurred at least a month prior to the election at
the Seven Hills golf course project. On this day, he was operat-
ing a rock-hauling truck, John Prlina was operating a loader,
and they spoke as each was finishing his work. Prlina asked
“what do I think and how . . . did I think the other employees
thought about the Union . . . .” Prlina continued, saying “he
knew that they’d have to bid the jobs higher and . . . the market
in the residential building would not be as good for a Union
company as non-Union.”7 Rupp testified that the second inter-
rogation occurred a week before the election while he was op-
erating Respondent’s screening plant on Sahara Avenue in Las
Vegas.8 According to him, Matovich approached and “asked
how I thought about the Union coming in and how other em-
ployees might think about it . . . .” Continuing, Matovich said
“that there might be layoffs” and, in said regard, mentioned
“the competitiveness of Kajima with being Union.”9
Brent Shreeve testified with regard to two allegedly unlawful
statements prior to the election––one communicated by him to
employees pursuant to Bill Matovich’s instructions and one by
Bill Matovich, during which he was present.10 With regard to

7 Prlina admitted that such a conversation occurred and that “I knew
Robert pretty well as an employee. And . . . we had a very light con-
versation about . . . how he felt like the Union vote might go.”
8 At its screening plant, Respondent operates machines, into which
contaminated materials are dumped and separated into component
materials.
9 Notwithstanding testifying extensively as to the issued raised dur-
ing the hearing, Matovich failed to deny the occurrence of or the sub-
stance of this alleged act of interrogation.
10 Although not alleged as violative of the Act, Shreeve testified re-
garding an August 1996 conversation between himself and Matovich at
the Stadium Saloon bar on Boulder Highway in Las Vegas. “Bill Ma-
the former, Shreeve testified that, on the morning of the day of
the election, October 24, 1996, he spoke to Matovich at the
equipment line up at the Del Webb jobsite, and he “asked me if
the guys were going to go Union and I told him . . . I didn’t
know how they were going to vote and he proceeded to tell me
that Lee Atkins offered us a dollar an hour raise and they would
pay for all of our medical, dental insurance come January 1st,
1997 if we voted no on the Union.” According to Shreeve,
Matovich then instructed him to inform the employees, whom
he supervised, of Atkins’ offer, and, thereafter, he (Shreeve)
reported Atkins’ offer to approximately 20 employees (includ-
ing alleged discriminatees Atteberry, Rupp, and Ewoldt and
employees Bucky Taylor, George Carr, Dave Tucker, Dan
Grill, Steve Cummins, Vince Buffolino, and Brett Morgan) on
the jobsites, at which he was the foreman.11 Placing the con-
versation a couple of days prior to the election, Ewoldt corrobo-
rated Shreeve’s testimony, stating that the latter approached
him on Respondent’s Summerlin jobsite and “told me that the
management was offering a dollar an hour raise and was want-
ing to pick up our benefits if the Union was voted out.” No
other witness, including Rupp, who testified extensively regard-
ing alleged violations of Section 8(a)(1) of the Act, corrobo-
rated Shreeve’s testimony, and Matovich specifically denied
relaying such an offer, from Atkins, to Shreeve or instructing
the latter to relay the offer to the employees.
With regard to Matovich’s other allegedly unlawful com-
ment, Shreeve testified that, on the same day, October 24, in the
afternoon, Matovich again approached him near the equipment
line up at the Del Webb jobsite. Todd Ewoldt was standing
with him, and “Matovich asked . . . Ewoldt how he was going
to vote on the Union. [Ewoldt] replied . . . that it was confiden-
tial and he did not care to discuss that with Mr. Matovich. So
Mr. Matovich got a little upset and shook his head and got in
his truck and drove away.” Placing the incident in the days
immediately preceding the election, Ewoldt corroborated
Shreeve, testifying that, as the employees were parking the
equipment and walking to their cars, Matovich “pulled in front
of us with his truck and kind of headed us off and called my

tovich generally asked me if I knew any knowledge about the Union
organizing . . . and I told him I didn’t know so he proceeded to tell me
that if the company was to go Union that chances are they’d shut the
company down and move the company out of town.” During cross-
examination, Shreeve expanded upon what Matovich told him, stating
that the latter said “that the company was against the Union and if we
voted in the Union they could not [compete] with other contractors
around town. So that would force them to lay everybody off, close the
doors and move the company out of town.” While believing that, in-
asmuch as Matovich was aware that Shreeve had worked with the em-
ployees, whom he supervised, “for years,” Matovich’s intent was for
him to act as a conduit and repeat his comments to the employees,
Shreeve denied that Matovich asked him to do so or that he informed
employees as to what Matovich said. Notwithstanding Shreeve’s de-
nial, par. 7(a) of the consolidated complaint alleges that Shreeve threat-
ened employees with closure of the business if they selected the Union
as their collective-bargaining representative. Moreover, while counsel
for the General Counsel unsuccessfully sought to withdraw the allega-
tion presumably in an effort to enhance Shreeve’s credibility, alleged
discriminatee Ewoldt testified that, prior to the election, Shreeve told
him that, if employees voted for the Union, Respondent “could pull out
and just leave the valley.” During cross-examination, Ewoldt recalled
Shreeve saying such was a “possibility.”
11 During cross-examination, Shreeve testified that he reported At-
kins’ offer to the employees on October 23––the day before the elec-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1610
name and asked me how it was going . . . and he then asked me
how I was going to vote and I really didn’t give an answer. . . .
Then he asked me . . . how the vote was going to go, and I said
I didn't know and I walked away . . . .” Matovich failed to deny
the occurrence of and substance of this conversation.
The consolidated complaint alleges that employees, Robert
Atteberry and Robert Rupp, were unlawfully discharged by
Respondent on the day after the election, October 25. Accord-
ing to the union official, James Guin, Atteberry12 was the em-
ployee, who initially contacted the Union with regard to orga-
nizing Respondent and who obtained most of the authorization
cards prior to the filing of the election petition, and there is no
dispute that Atteberry acted as the Union’s observer during the
election. Rupp testified that, during the preelection campaign,
he worked with Guin, attended organizing meetings, and an-
swered employees’ questions about the Union, and Guin testi-
fied that Rupp assisted Atteberry in organizing Respondent’s
employees. Other than Atteberry’s work as the union observer
during the election, there is no evidence that Respondent was
aware of his organizing efforts on behalf of the Union or of
Rupp’s support for the Union.
On the morning of October 25 both Rupp and Atteberry were
assigned to work at Respondent’s screening plant on Sahara
Ave. in Las Vegas. According to Rupp, who was the leadman
in charge of the operation of the plant,13 they operated the
equipment for 2 hours14 but noticed, as a result of unusually
strong winds, a large amount of dust coming from the machine
and blowing toward a nearby large housing development.
Rupp testified that, in these circumstances, he decided to shut
down the screening plant machinery and that he placed a tele-
phone call to Brent Shreeve to inform him of his decision, tell-
ing the former “that we were going to shut down. It was too
dusty and we were going to go to the office and get our checks.
We were going to go home for the day.” According to Rupp,
Shreeve agreed, and, as it was a Friday and payday, he and
Rupp drove together to Respondent’s office to obtain their pay-
checks.15 Contradicting Rupp, Shreeve testified that, due to the
excessive wind conditions that morning and to neighbor com-
plaints about dust control, he decided that the screening plant
could not operate in such conditions and “I told [Atteberry and
Rupp] to shut it down for the day so we didn’t get fined by
EPA.” Shreeve further testified that he telephoned Bill Ma-
tovich and told the latter about the windy conditions and his
resulting actions, “and he agreed that was fine.” Also, “I told
him that I’d call the office and make sure that [Atteberry’s and
Rupp’s] checks are at the office and they could have the rest of
the day off.” After concluding his conversation with Matovich,
according to Shreeve, he told the two employees that they could
have the rest of the day off and that they should go to the office
to obtain their paychecks.16
Rupp testified that, when he and Atteberry arrived at the of-
fice, a secretary informed them that, mistakenly, their checks
had been sent to a jobsite and that she had requested that the

12 Atteberry was ill and did not testify at the hearing.
13 Shreeve was the immediate supervisor for Atteberry and Rupp.
14 Rupp’s testimony was contradicted by Shreeve’s handwritten
notes, which establish that the screening plant was not operated at all
on October 25.
15 Atteberry rode to work that day in Rupp’s car.
16 Shreeve said he did not transfer the two employees to another job-
site for the day as “I had all the guys I needed to run all the equipment
that day. I had no other use for them.”
checks be routed to the office. Rather than inside the office,
Rupp and Atteberry waited in the parking lot for the delivery of
their paychecks. They were observed by John Prlina, who
called from his office—“he said you’re not running the plant
today and I said it was too windy and he just said good call and
went back in the office.” Shortly thereafter, the employees’
paychecks arrived, and, at approximately 10:30 or 11 a.m., as
they were about to drive away, Bill Matovich called on Rupp’s
cellular telephone. Concerning what was said, Rupp testified,
“He said he was at the Seven Hills project and he said he
needed us. A couple of scraper hands [had not reported for
work and he had a couple of scrapers sitting and needed opera-
tors for them] . . . . I says I’m already at the office. I had my
check and I said I’d like to take the rest of the day off.” After a
moment, “he asked the same question again and I said well,
Bill, I’d kind of like to take the rest of the day off . . . if you
don’t mind.” To this, Matovich replied, “Well, okay and he
hung up.”17 Later that day, Rupp was informed by Atteberry
that they had been fired. The former telephoned Respondent’s
office, and a secretary confirmed what Atteberry had re-
ported.18
As to Respondent”s defense, Bill Matovich testified that,
early in the morning on October 25, he was at the Seven Hills
project and was faced with the failure of two scraper drivers19
to report for work. At approximately 7:45 a.m., Shreeve tele-
phoned him and reported that he had shut down the screening
plant for the day. “I said what did you do with the operators
and I said I need operators on another job . . . . he said they
went to the office to get their checks. It was on a Friday . . . .
He said I told them there was no work . . . . I said . . . I need
them. I’ve got two operators who didn’t show up.”20 Accord-
ing to Matovich, immediately after concluding his phone call
with Shreeve, he telephoned the office and was informed that
Rupp and Atteberry were standing in the parking lot. Believing
the two employees were together and knowing Rupp’s cellular
telephone number, Matovich placed a telephone call to Rupp
and spoke to him. Respondent’s Exhibit 2, Matovich’s cellular
telephone billing record, establishes that the said telephone call
was placed at 8:20 a.m. and lasted for just 66 seconds. Under
questioning by counsel for the General Counsel, Matovich gave
the following account of his conversation with Rupp: “I asked
Mr. Rupp if him and Bob could come out. I had two scraper
17 Rupp specifically denied that Matovich warned that he was subject
to discipline, that Matovich asked that Rupp relay his message to Atte-
berry or mentioned the latter’s name, that he informed Atteberry about
Rupp's request, and that he spoke to Atteberry during the conversation.
18 Brent Shreeve testified that, approximately 1-1/2 hours after send-
ing Atteberry and Rupp to the office, he met Matovich at Respondent’s
Pulte Holt jobsite, “and he proceeded to tell me that he had fired [Atte-
berry and Rupp] for refusing to run scrapers” on a job at the “7 Hills
golf course project” and that “if they return on the jobsite, I’m sup-
posed to fire them immediately.” Respondent’s termination reports for
each alleged discriminatee reads, “Refused to run scraper on 10/25/96
when requested. ‘Refused work Assignment.’”
19 A scraper machine is a large item of equipment with a large dirt
scraping mechanism underneath, which is used to move dirt a short-
haul distance of 200 to 300 feet to where a fill is needed and which is
usually pushed by a bulldozer.
20 While denying that Shreeve ever said he had given the two em-
ployees the day off, Matovich conceded that, by informing him the
employees were going to the office to pick up their paychecks, Shreeve
meant that Rupp and Atteberry had been given the remainder of the day
off.
KAJIMA ENGINEERING & CONSTRUCTION 1611
hands that didn't show up . . . . and we were on a deadline. I
needed the help. And, Bobby said that they had other plans and
I asked him to please come help me. I needed them bad.”
Rupp replied that he would speak to Atteberry; the former came
back on the line a few seconds later,21 and “and said no, we
can’t do it. We have other plans.” Matovich again asked, and
Rupp again declined to work. Ultimately, according to Ma-
tovich, after having requested Rupp’s and Atteberry’s help
“three times,” he “said fine, if that’s the way you feel, I’ll get
someone else.”22 Matovich testified that both employees were
paid for 2 hours of work that morning and that, therefore, each
was on companytime at the time of his telephone conversation
with Rupp.
According to Matovich, a half hour later, he telephoned John
Prlina, who was in the company office, and “I just told him I
was upset because I had [two] operators . . . refuse to run my
machines and . . . I have a notion to fire them for the simple
reason of you don’t refuse to run equipment when you’re . . .
still on company time . . . . He said do what you want to do.”
Thereupon, Matovich testified, he “just called the secretary and
told her to terminate [Rupp and Atteberry].”23 Moments later,
Matovich changed his testimony, stating that, rather than saying
“do what you want to do,” Prlina actually ended their conversa-
tion, saying “do you want me to go ahead and terminate them

21 While testifying on behalf of Respondent, Matovich estimated that
the amount of time taken for Rupp to confer with Atteberry was “like
five seconds or ten seconds.”
22 Asked if he told Rupp that his and Atteberry’s jobs were placed in
jeopardy by refusing to honor Matovich’s request, the latter said, “I
believe to the tone of my voice he got the hint. I directly never told
him though.”
Testifying on behalf of Respondent, Matovich recounted two similar
versions of his telephone conversation with Rupp. Questioned by coun-
sel for Respondent, Matovich recalled the following version of the
telephone conversation: “So I called Robert up, and told him needed
him and Bob Atteberry to come out and run the scrapers for me.” Rupp
responded that they had “other plans,” and, after Matovich “empha-
sized” that he “really needed them,” Rupp asked Matovich to wait
while he spoke to Atteberry. “He talked for a little bit to [Atteberry],
and come back on the phone and said, ‘No, we can’t make it. We got
other plans.’” According to Matovich, he “repeated, I said, ‘Bob, I’m
in a big bind here,’ I said, ‘We’ve got a schedule to meet, and I’ve got
two scrapers that I need to run. I’d appreciate if you guys would please
come out and run those scrapers.’ And he said, ‘No, we’ve got other
plans. . . . we can’t do it.’” After the introduction of his cellular tele-
phone billing record, Matovich gave the following account of the tele-
phone conversation: “I called him, and I’m direct . . . I said, ‘Bobby,
I’m in dire need of two scraper hands, could you and . . . Bobby Atte-
berry please come out and run these . . . two scrapers? I need you.’
And he said, ‘Well, we had other plans.’ And I said, ‘Bob I need you
bad, please.’ He said, ‘Just a minute, I need to talk to Bob Atteberry’
. . . . So he just like five seconds or ten seconds, and then he come back
‘No,’ he says, ‘we can’t do it, we have other plans.’” To this, Matovich
responded “fine” and “I’ll get someone else to do it” in a “stern enough
voice.”
23 Matovich testified that, while Prlina drafted the language on the
employees’ termination documents, the reason was what occurred–
Rupp and Atteberry were terminated for refusing work assignments.
Matovich denied that Respondent’s normal practice was to permit
employees to have the day off when their assigned jobs were not capa-
ble of being performed and stated that days off were only permitted
when sought “in advance,” which would enable the company to work
around the employee. Confronted with his pretrial affidavit in which he
stated, “I would usually allow them to take the day off but I was under
pressure on the job to get it finished,” Matovich said that such was
“right.”
then” and that, rather than him doing anything further, Prlina
took care of the terminations and he had nothing more to do
with the matter at that point. Matovich denied that the subject
of the Union was discussed during this conversation.
John Prlina testified that his conversation with Matovich oc-
curred at approximately 9:30 a.m. that morning, and Matovich
said that two scraper hands had failed to report for work at
Seven Hills, that he had telephoned Brent Shreeve and re-
quested that, as the screening plant could not operate, Atteberry
and Rupp be sent to Seven Hills, and that Shreeve told him the
two employees were on their way to the office to obtain their
paychecks. According to Prlina, Matovich next said that he
then “contacted” Rupp and requested that he and Atteberry
report to Seven Hills but that Rupp said they had other things to
do that day and did not want to report to Seven Hills. Matovich
added that he “pleaded” with the employees, who continued to
refuse to report to the other jobsite. Contradicting Matovich,
Prlina stated that the Union was mentioned by the former, who,
while having authority to terminate employees, felt “uneasy”
doing so in these circumstances as Atteberry had been the Un-
ion’s observer during the election. Thereupon, according to
Prlina, he spoke to Lee Atkins, the then regional manager,
about the situation, “and we determined that we should termi-
nate Robert Rupp and Robert Atteberry . . . for refusing a work
assignment.” Prlina added that they decided that such conduct
could not be condoned especially when “both employees were
still on the clock.”24
With regard to the existence of a policy or practice concern-
ing employees, who refuse to perform work assignments, while
unable to recall the names of any other employees, who had
been terminated for refusing work assignment, Bill Matovich
insisted that Respondent’s policy is to terminate any employee,
who refuses to perform a job, and that there is no policy, per-
mitting an employee to refuse to perform a job. However,
when asked, by counsel for the Union, whether, every single
time an employee declined a job, he fired the employee, Ma-
tovich altered his testimony, replying, “I don’t know how to put
it into words. No, there’s times, yes. It’s either let certain
things slide and there’s times you don’t let things slide. . . . It
depends on the circumstances.” Asked why he did not let what
Atteberry and Rupp slide, Matovich answered, “Because it had
been happening a lot to us and on this particular job we were on
a deadline schedule. . . . it was due to the fact of the nature of
the job.”25 In contrast, John Prlina was unequivocal, saying
that Respondent’s policy for “refusing a work assignment is
termination. We feel that . . . if we did not terminate workers
for refusing a work assignment . . . would result in workers that
wanted to work at will . . . .” He then added that, while Re-
spondent never had been confronted with employees refusing to
perform assigned work prior to Atteberry and Rupp, employees
have been terminated for refusing to follow work instructions,
for abusing company equipment, and for refusing to operate a
24 While the inevitable conclusion from the testimony of Prlina is
that the discharge decision was a joint one between himself and Atkins,
the latter, during his testimony, contradicted Prlina, specifically deny-
ing any role in making the said decision—“the superintendent made a
decision that he wanted to terminate. He took that decision to the pro-
ject manager who was his boss and that individual came to me and
basically advised me . . .. of what they were doing.” (Emphasis added.)
Atkins testified that the discharge decision had been reached prior to
his involvement and that he merely indicated his agreement with it.
25 Matovich failed to offer any corroboration for this assertion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1612
bulldozer unless windows were installed and that Respondent
has never permitted a refusal to perform a assignment slide.
As to whether Respondent had an urgent need for scraper
operators at its Seven Hills jobsite on January 25, there is no
dispute that Respondent was preparing an area for the construc-
tion of model homes; that two scraper drivers, Jon Smith and
Ron Hollewell, failed to report for work; and that each was
scheduled to operate a model 637D scraper.26 General Coun-
sel’s Exhibit 5, Respondent’s time and equipment reports for
the Seven Hills jobsite, reveals that two scrapers were operated
on Saturday, October 19; that not only were the two scrapers
not operated on Friday, October 25, but also neither was oper-
ated on Saturday, October 26; and that, while each scraper was
utilized on Monday, October 28, no overtime was worked.
Asked why no scraper was used on October 26, Matovich ex-
plained that Respondent always performs “catch up work” on
Saturdays with a skeleton crew and “our deadline runs on a
forty hour week and our scrapers would have been on over-
time,” which Respondent did not want to pay. On this point,
asked by counsel for the General Counsel whether, on Satur-
day, October 26, Respondent was caught up with scraper work
to the point that operation of the scraper machines was not nec-
essary, Matovich answered, “Yes.”27 John Prlina testified that
Respondent was “under the gun” to finish its work on the
model home area. However, after initially stating that “heavy
ripping” work is done on Saturdays and that “if we had run
scrapers on Saturday, the dozers would have been tied up push-
ing [them] and would not have been able to loosen up enough
material to make next week’s production possible,” he later
admitted not possessing “intimate knowledge” as to the condi-
tion of the parcel on the Seven Hills job on October 26.
Turning to the allegedly unlawful discharge of Todd Ewoldt,
the record establishes that he was hired, by Respondent, in
August 1995; that his primary position was as a scraper opera-
tor;28 that, during his job tenure with Respondent, he was
“moved around” from job to job; and that, at the time of his
allegedly unlawful discharge, he was working on Respondent’s
Del Webb jobsite in Summerlin. While Union Official Guin
stated that Ewoldt helped Atteberry during the Union’s organiz-
ing campaign, the former did not testify with regard to any
activities, if any, in which he engaged in support of the Union,
and Guin’s testimony was, thus, uncorroborated. Also, while
there is no evidence that Respondent was aware of Ewoldt’s
support for the Union or of any union activities in which he

26 For its projects during the fall of 1996, Respondent utilized six
637D scrapers–four were leased and two, numbers 301 and 302, were
owned by Respondent. Smith was scheduled to operate the No. 301
scraper on October 25 and Hollewell was scheduled to operate the No.
302 scraper that day.
27 Matovich admitted that neither scraper machine was operated on
the following Saturday as there was no need to catch up on scraper
work.
28 Brent Shreeve, who testified that he was Ewoldt’s immediate su-
pervisor, stated that the alleged discriminatee had “excellent” qualifica-
tions and was able to operate “basically all the equipment that Kajima
operated,” including blades, scrapers, bulldozers, water pulls, and load-
ers. In contrast, Ewoldt was not quite as expansive, testifying that,
while “the majority of my skills were on a scraper and that's where I
was mostly needed,” he did operate a bulldozer for a day, and “I ran a
water pull for quite some time . . . . approximately three or four months
. . . .” Nevertheless, he was paid as a scraper operator.
Bill Matovich testified that Ewoldt was qualified to operate the wa-
ter pull machine and to perform grade checking work.
may have engaged, the General Counsel obviously desires that
the inference be drawn that Respondent suspected his involve-
ment in the Union’s organizing effort and acted on it. Thus,
former supervisor, Brent Shreeve, testified that, the morning
after Matovich’s interrogation of Ewoldt, during which he
(Shreeve) was present, Matovich again approached him at the
Del Webb jobsite, and “he asked me again if the guys were
going to vote yes on the Union. I told him I did not ask them
. . . . and then he proceeded to tell me if they did not say any-
thing then apparently they must be going Union and, if they go
Union . . . he is going to fire Todd Ewoldt.” While Shreeve
failed to testify that he informed Ewoldt of Matovich’s intent,
the alleged discriminatee testified that, on the day following his
alleged interrogation by Matovich, Shreeve reported to him
“that Matovich had told him if this Union thing would pass that
I was going to be terminated.”29 The Union was, of course,
victorious in the election; approximately 6 weeks later, on
December 9, 1996, Foreman Bruce Kellogg approached
Shreeve and said, “I was being laid off for reduction of force.”
Ewoldt testified that, on the Del Webb project, Respondent’s
employee complement “varied from day to day. They’d ship
guys in and out.” He added that there were eight or nine em-
ployees working with him on December 9; that he was the most
senior employee and “everyone else had been pretty much short
time”; that he had been required to teach some of the remaining
employees, including Kelly Deadwiley, how to operate the
637D scraper; and that no other employees, including Dead-
wiley, were laid off with him. As to the matter of layoffs,
Ewoldt testified that “for as long as I’d been there, nobody had
ever been laid off . . . . they just moved people around from job
to job.”
Bill Matovich testified that Ewoldt was laid off on December
9 as “our job was winding down and we were out of scraper
work.” Echoing Matovich, Prlina testified that “we were slow-
ing down at that time . . . . we were turning scrapers back in.
Our scraper load was going down . . . .” He added that Ewoldt
was “hired as a scraper operator . . . and the only thing he ran
. . . was either a scraper or a water pull . . . .” However, con-
trary to an asserted decline in scraper work at the Del Webb
job, examination of General Counsel’s Exhibits 6 through 11,
the time and attendance reports for the job in Summerlin, dis-
closes that, in week prior to Ewoldt’s layoff, Respondent oper-
ated two 637D scrapers each day; that, from the day of
Ewoldt’s layoff (December 9) through January 6, 1997, Re-
spondent continued to operate two 637D scrapers almost every
day; and that the lesser experienced employee Deadwiley oper-
ated a scraper on several of those occasions. Moreover, Bill
Matovich testified that, at the time of Ewoldt’s layoff, Respon-
dent had other ongoing projects, including Pulte Homes, Victor
Valley, and Rancho Town and Country Club, which continued
through January 1997, and that, at each of these, Respondent
continued to require operation of scraper machines.
While Matovich specified a decline in scraper machine work
as the only reason for laying off Ewoldt, Prlina said another
factor in Respondent’s decision to lay off the alleged discrimi-
natee was excessive absenteeism––specifically that he had
worked just two 40 weeks in his final 14 weeks of employment;
however, Respondent failed to offer any of Ewoldt’s attendance
records, as corroboration for Prlina’s assertion. Questioned
29 Matovich specifically denied telling Shreeve that Ewoldt would be
terminated if the Union won the election.
KAJIMA ENGINEERING & CONSTRUCTION 1613
during rebuttal, Ewoldt denied that he failed to report for work
when scheduled or that Respondent ever mentioned absentee-
ism as a problem. Moreover, Prlina admitted that he only ex-
amined Ewoldt’s attendance records on the day before he testi-
fied.
Finally, regarding the consolidated complaint allegations,
that Respondent violated Section 8(a)(1) and (5) of the Act by
laying off employee, Robert Hickman, on December 26, 1996,
employees, Dan Billsby, Jim Mathers, and Guy Kennedy, and
Justin McPhie, on December 31, 1996, and employee, Bucky
Taylor, on January 8, 1997, Respondent conceded that it laid
off the above-named employees and that it did so without giv-
ing prior notice to the Union, and there is no record evidence,
nor is there any such contention, that, prior to effectuating each
of the layoffs, Respondent afforded the Union an opportunity to
bargain over its decision to lay off each of the above employees
or over the effects of the layoff. On this point, Union Official
Guin testified that, during December 1996 and January 1997,
he was not notified of any layoffs by Respondent and did not
learn of the above layoffs until he compared a list of current
employees, which had obtained during contract negotiations
with Respondent, with those set forth on the election eligibility
list. Thereafter, according to Guin, he spoke to Prlina and At-
kins, by telephone after a bargaining session—“I indicated that
the layoffs were unilateral changes and they were items that
should be brought up in negotiations . . . . [Prlina] indicated that
he did not agree with me. That he felt that he had the right to
go ahead and terminate the people however he saw fit.”
Several individuals testified that, prior to the above layoffs,
Respondent had maintained a consistent practice of not laying
off its employees when projects neared completion. Thus, as
stated above, alleged discriminatee Ewoldt testified that “for as
long as I’d been there, nobody had ever been laid off” and that
rather than doing so when jobs were winding down, “they just
moved people from job to job.” Likewise, former Supervisor
Shreeve testified that Respondent’s policy when work on a
particular project ended was to “transfer you to another jobsite”
and that he had been transferred from one job to another on
four separate occasions when work on one was about to end.
Also, according to Shreeve, on becoming a foreman, “guys that
finished off my jobsite when I got slow, they did transfer them
to other jobsites.” Continuing, Shreeve said, “What I would do
is I would tell Mr. Matovich I did not need these guys and he
would switch them to other jobsites.” That the foregoing was,
in fact, Respondent’s past practice is certain as Takefumi Ta-
kuma, who was placed in charge of Respondent’s Las Vegas
office in December, gave the following explanation as to why
employees were laid off rather than given other jobs—“because
jobs that they were on were finished, and other jobs that . . .
were still going on had a staff already working on the jobs.
Therefore, people who were on the jobs which were finished,
they don’t have no place to go.”30
Respondent contends that it had no obligation to bargain
with the Union over its decision to lay off employees in De-
cember 1996 and December 1997 inasmuch as the layoffs were
a direct consequence of management’s decision to change the

30 While Respondent’s practice was to transfer people to other jobs
rather than effectuating layoffs, it is clear that it has laid off employees
in the past when no positions were available on other jobsites. Accord-
ing to the uncontroverted testimony of John Prlina, at least three em-
ployees, one in July 1996 and two in September 1996, were laid off
when no positions were open on other jobs.
scope and focus of its Las Vegas, Nevada construction work
bidding from the mostly nonunion residential market to the
union signatory contractor-dominated public works and com-
mercial markets. In this regard, Takefumi Takuma testified
that, prior to 1990, Respondent’s nationwide business primarily
involved working on Japanese-owned projects but that, com-
mencing in 1990, due to a decline in the Japanese economy,
except for the southern Nevada area, Respondent began bidding
on and performing work on large public works projects. Ta-
kuma testified that, while such “was successful in terms of the
work volume we got,” public works construction “was not suc-
cessful in terms of profitability.” According to Takuma, Re-
spondent experienced severe profit margin problems, resulting
from its penchants for bidding far too low on projects to ensure
any sort of profit or to even meet costs and for bidding on pro-
jects without having project managers in place. Accordingly,
commencing in 1994, “the . . . company started to realize a
large amount of losses, with such reaching $75,000,000 in
1996.” As a result, Kajima Corp. began to oversee Respon-
dent’s business practices, and cost reduction measures were
immediately implemented, including the closure of three re-
gional offices, the layoffs of management personnel, the down-
grading of the Las Vegas office to a project office and, thereby,
effectively confining project bidding to the Las Vegas rather
than a wider geographic area, and the demotion of Lee Atkins
to project manager status and the transfer of Takuma to Las
Vegas. In addition, nationwide bidding and project guidelines
were implemented including a decision to concentrate Respon-
dent’s work in the west coast States, a limitation on the size of
projects to those in the $20 million to $50 million price range
and no more than 10 active projects at any one time, a require-
ment of a 65-percent profit margin on any bid, the necessity of
a project manager on hand at the time of a bid, and a require-
ment that projects must be granted approval prior to bidding.
Finally, with regard to southern Nevada, in which area Respon-
dent’s Las Vegas office had confined its bidding to the non-
union residential market, losses also resulted from Respon-
dent’s business practices, and “we were told to analyze the
reasons of the losses in the Las Vegas office . . . and we could
not bid any jobs for a long time. As a result, the backlog
shrunk very quickly . . . a lot of jobs were being finished” be-
cause the nature of the work in Las Vegas was short duration
type jobs. According to Takuma, this moratorium on job bid-
ding in the Las Vegas office commenced in August or Septem-
ber 1996 and concluded “sometime in January, I would say,”
and, during the 3 or 4 months, the new Las Vegas office man-
agement team utilized the time to review the office’s operations
and to perform a cost analysis on each of those ongoing pro-
jects on which Respondent seemed to be losing money.
During his testimony, Takuma was careful to separate the
reasons underlying the bidding moratorium and job-related
decisions reached during the time period from decisions taken
as a result of the Union’s victory in the representation election.
He testified that the former solely related to the profitability of
existing jobs and that, as to the latter, Respondent understood
that there undoubtedly would be changes in the types of jobs
for which Respondent would bid—“we knew that . . . signing
the [collective-bargaining agreement] was coming up . . . we
were realizing that now we have to . . . look for different kinds
of projects in a different market segment.” Further, as to the
moratorium, Takuma stated that future projects were not “at
all” considered and “we just simply assumed that . . . the labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1614
costs would stay the same through the end of . . . each project.”
Conversely, as to the effect of the Union’s selection by its em-
ployees as their collective-bargaining representative, he con-
ceded that Respondent’s calculations as to the types of future
projects, on which to bid, were directly related to labor costs––
“I would . . . say yes . . . .” Eventually, according to Takuma,
“beginning probably February . . . . 1997,” Respondent gradu-
ally concluded that, given that “our work force [was] all Union
workers,” which meant its “labor costs [would be] more than
before,” and that, therefore, “our costs [would] be so much
higher” for residential work, it could no longer compete in the
construction market segment and would have to begin bidding
on public works and commercial construction projects, the type
of work with which Respondent was most familiar nationwide.
Finally, with regard to whether Respondent’s above-described
December 1996 and January 1997 employee layoffs were re-
lated to the work moratorium or the gradually reached decision
in February 1997 to change the emphasis of Respondent’s
southern Nevada construction work, Takuma admitted that the
six affected employees were laid off “due to a lack of work” as
the “jobs that they were on were finished, and other jobs that
. . . were still going on had a staff already working on the jobs.
Therefore people who were on the jobs which were finished,
they don’t have no place to go.”31
Both Takuma and Lee Atkins testified to the significance of
Respondent’s decision to change the emphasis of its job bid-
ding in the Las Vegas area to the public works and commercial
construction markets and to the degree to which its employees’
work would differ from their jobs on residential construction
work. While Takuma termed the construction projects, for
which Respondent’s Las Vegas office is now bidding, “totally
different” than the work, for which it previously bid and per-
formed, and the change “substantial,”32 he conceded that differ-
ence was “due to the unionization” and “our work force is all
union workers. That means labor costs more than before.”
Atkins testified that Respondent’s decision to enter the public
works and commercial construction markets in the Las Vegas
area was a change of direction for Respondent as there would
be different contract requirements, penalties, management
teams, and “job setups.” However, while Atkins maintained
that the work of the bargaining unit employees would not re-
main the same because “different types of equipment would
more than likely be used,” Takuma contradicted him, admitting
that the type of earth moving construction work, which Re-
spondent performs, would not be changed and that the bargain-
ing unit employees would be performing the same work with
the same equipment––bulldozers, scrapers, and water pull
trucks.
Respondent also contends that the Union demanded to bar-
gain over the effects of the layoffs of the six bargaining unit
employees during negotiations for the parties’ initial collective-
bargaining agreement and that such effects bargaining did, in
fact, occur. There is no dispute that Respondent and the Union
commenced their contract negotiations in January 1997 and that
the bargaining concluded with the signing of a collective-

31 Takuma added that the six laid-off employees, who are named in
the consolidated complaint, “would still be working” if the construction
jobs had continued.
32 Takuma defined what he meant by a “substantial change”––“the
types of clients we’ll be meeting will be totally different, and a totally
different practice requires much more paperwork, types of engineers we
have to hire, and cost base will be different.”
bargaining agreement on March 17. After initially testifying
that, at a bargaining session on January 9 at the Union’s office
in Pasadena, California, “it was brought to our attention . . .
about us laying off people,” Lee Atkins testified that, at said
meeting, “we advised the Union that we were laying people
off” and that James Guin replied that he had a list of the people
and that he was aware “for a fact” that Respondent had been
laying off employees. “And I think . . . we advised them that
. . . we laid people off and our jobs are coming to an end and
we’re going to continue to lay people off.” Atkins testified
further that the issue next arose at a bargaining session on Janu-
ary 23 during which meeting there was a lengthy discussion as
to whether some individuals had been laid off or had voluntar-
ily quit. According to Atkins, “it was brought to our attention
that [the Union] wanted to discuss the individuals that were laid
off . . . . They asked us our policy of laying off” and said they
wanted notice thereafter.33 “We told them we will lay people
off . . . by seniority . . . if the skill of the individual meets the
seniority requirements . . . they basically acknowledged that . . .
give us something in writing . . . I believe it was asked about
the . . . individuals we already laid off. And they said, ‘Well,
that’s all right as long as you give us notice, from this date
forward, of who you’re [going to] lay off.’”
Mickey Adams, a vice president of the Union and the chair-
man of the Union’s negotiating committee during the contract
bargaining with Respondent, could not recall the general sub-
ject of layoffs being discussed during the bargaining other than
in connection with alleged unfair labor practices. In this re-
gard, the matter arose on or about March 6 or 7 when Respon-
dent’s negotiators asked the Union’s representatives if the latter
could assist with the unfair labor practice allegations, and “we
told them we wanted to talk about it before they laid them
off.”34 Specifically asked if he ever mentioned any of the six
laid-off employees, who are named in the consolidated com-
plaint, Adams said, “No, I’m not gonna sit here and say I did.”
However, when asked, by me, if he ever discussed, with Re-
spondent, what the latter should do about the six employees,
who had been laid off, Adams stated that, at the final bargain-
ing session, there was discussion regarding a list of employees’
names, which is attached to the collective-bargaining agree-
ment, and “I told them . . . that . . . before we signed this con-
tract I wanted every single employee to have the right to come
in, even the ones that were terminated, and to have a right for
re-employment . . . . And I told them, you can take your choice,
but we want those guys to have the right to go back to work.”
He added that, in response, Lee Atkins provided the list, which
is attached to the collective-bargaining agreement and which,
apparently, contains the names of individuals, who had been
employed by Respondent in the Las Vegas area. Examination
of said list, an attachment to Joint Exhibit 1, reveals that the
names of employees Hickman, Billsby, Mathers, Kennedy,
McPhie, and Taylor are included among the names, and, ac-
cording to Adams, “the intent of the list is that . . . when Ka-
jima get work . . . we wanted them to go back to work.” He
added that Respondent agreed to this demand. During cross-
examination, Adams acknowledged that those individuals,
33 Atkins recalled that, either during this meeting or the January 9
meeting, the Union mentioned the names of the six laid-off employees,
who are named in the consolidated complaint.
34 Adams testified that this discussion was subsequent to the filing of
the unfair labor practice charges.
KAJIMA ENGINEERING & CONSTRUCTION 1615
whose names are set forth on the list, would be reemployed
when, and if jobs became available.
B. Legal Analysis and Conclusions
Initially, I shall discuss the several acts and conduct, viola-
tive of Section 8(a)(1) of the Act, which, the consolidated com-
plaint alleges, were committed by Respondent prior to the rep-
resentation election on October 24, 1996. Respondent is al-
leged to have committed three separate acts of unlawful inter-
rogation of its employees, two by Bill Matovich and one by
John Prlina. With regard to the former, notwithstanding having
specifically denied several other allegedly unlawful acts, Ma-
tovich failed to deny either of the interrogations, as to which
Robert Rupp, Todd Ewoldt, and Brent Shreeve35 testified, and,
therefore, I shall credit the testimony of each as to what oc-
curred. Accordingly, I find that, evidently anxious to discover
the extent of support for the Union amongst Respondent’s
heavy machinery operators, grade checkers, and surveyors, and,
possibly, the identities of the leading union adherents, Ma-
tovich interrogated employees, Rupp and Ewoldt; that, in the
week before the election, he approached Rupp while the latter
was operating the screening plant on Sahara Avenue, asking
“[Rupp] how [he] thought about the Union coming in and how
other employees might think about it” and warning that there
might be layoffs given Respondent's competitive status as a
union-signatory contractor; and that, a day or two before the
election while Ewoldt and Shreeve were standing together near
the parked equipment at the Summerlin jobsite, Matovich ap-
proached, called Ewoldt’s name, and “asked me how I was
going to vote” and, after the employee answered evasively, “he
asked me how the vote was going to go . . . .” With regard to
each, there is no record evidence that either Rupp or Ewoldt
was an open and declared union adherent, nor is there evidence
that Respondent was aware of either employee’s support for the
Union. Further, Matovich was a management official, there is
no evidence that he had a social relationship or any type of
friendship with either employee, and he gave no assurances
against reprisals. Moreover, neither act of interrogation ap-
pears to have been part of a casual conversation but, rather,
each appears to have been a calculated and deliberate attempt to
gain information from an employee. I believe Matovich’s in-
terrogation of Rupp was particularly egregious, given that such
was coupled with an explicit warning of layoffs. In the above
circumstances, I find that each act of interrogation was coercive
and patently violative of Section 8(a)(1) of the Act. Dealers
Mfg. Co., 320 NLRB 947, 948 (1996). Advance Waste Sys-
tems, 306 NLRB 1020 (1992). As to the alleged unlawful con-
duct attributed to Prlina, Respondent’s project manager admit-
ted having interrogated employee Rupp, and the latter seemed
to be honestly recounting his version of his encounter with
Prlina. Notwithstanding his admission, as, in comparison to
Rupp, he appeared to be the less credible witness, I shall rely
on the employee’s version of the incident. Therefore, I find

35 I am concerned about the clear bias, which Shreeve exhibited, for
the Union. Thus, not only had he worked with the employees, whom
he supervised, for a long time, but also he had placed his name on the
Union’s out-of-work list prior to quitting his job with Respondent and,
after trying for a number of years, had become a member of the Union
after leaving Respondent. Additionally, as shall be discussed infra, I
believe he fabricated his denial of an unfair labor practice, which was
attributed to him. In these circumstances, I shall only credit Shreeve
when corroborated by other, credible witnesses or the record as a
whole.
that, like Matovich, anxious to ascertain the extent of sentiment
for the Union amongst Respondent’s employees, while working
with Rupp at the Seven Hills project prior to the election, Prlina
asked the former “what do I think and how . . . did I think the
other employees thought about the Union” and added that “the
market in the residential building would not be as good for
Union company as non-Union.” As stated above, there is no
evidence that Rupp was an open and avowed supporter or that
Respondent had any knowledge regarding his union sympa-
thies. Moreover, Prlina was a high management official and
there is no evidence that he and Rupp were friends or that he
gave Rupp any assurances against reprisals. In these circum-
stances, I likewise find Prlina’s interrogation to have been co-
ercive, in violation of Section 8(a)(1) of the Act. Advance
Waste Systems, supra.
A troubling36 issue here concerns paragraph 7(a) of the con-
solidated complaint, in which it is alleged that Respondent,
through Brent Shreeve, informed employees that, if they se-
lected the Union as their bargaining representative, Respondent
would close its Las Vegas, Nevada office. While Shreeve, who
testified that Bill Matovich had informed him, in August, of
Respondent's intent to move out of Las Vegas if the Company
went Union,37 denied having done so,38 I rely on the contrary
version of events of the more credible Todd Ewoldt. Therefore,
I find that, prior to the election, Shreeve essentially repeated
what Matovich told him, warning Ewoldt that, if the employees
voted for the Union, Respondent “could pull out and just leave
the valley.” Such a threat, as uttered by Shreeve, is, of course,
utterly coercive and has long been considered one of the so-
called hallmark violations of the Act. Tufo Wholesale Dairy,
320 NLRB 896, 903 (1996); Harpercollins Publishers, Inc.,
317 NLRB 168, 186 (1995). Accordingly, I find Shreeve’s
threat of office closure to have been violative of Section 8(a)(1)
of the Act.
Turning to the consolidated complaint allegations, that cer-
tain of Lee Atkins’ comments to the assembled employees dur-
ing the preelection meeting at the Mardi Gras Hotel on October
17, 1996, were violative of Section 8(a)(1) of the Act, I believe
that the most credible and reliable accounts were those of al-
leged discriminatees, Rupp and Ewoldt, each of whom ap-
peared to be testifying truthfully as to his recollection of what
Atkins said and that, during his testimony, Atkins virtually
admitted making at least two of the ascribed, allegedly unlaw-
ful comments. Thus, relying only on the testimony of Rupp
36 I am concerned with counsel for the General Counsel’s conduct in
attempting to withdraw this consolidated complaint paragraph clearly in
an undisguised attempt to bolster Brent Shreeve’s credibility. Thus,
while he denied engaging in the alleged conduct, it is obvious that the
General Counsel would not have pled the allegation without supporting
evidence, and, in fact, probative evidence was presented. In my view,
the General Counsel’s overriding burden is to establish the truth of
what occurred in any unfair labor practice matter and not merely to act
as a litigating party with an interest to protect.
37 Matovich denied making such a statement to Shreeve, and, while I
generally believe that the former was a far more credible witness than
Shreeve, given subsequent events, which I will discuss infra and which
warrant the conclusion that Respondent acted unlawfully in attempting
to dissuade employees from supporting the Union, I shall credit and
rely on Shreeve’s testimony as to their conversation.
38 Shreeve testified that he believed Matovich used him as a conduit
to the employees, and I believe that, in this instance and in another,
Matovich deliberately communicated a threat to Shreeve certain that
the latter would communicate it to the employees, whom he supervised.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1616
and Ewoldt and the admissions of Atkins, I find that, during the
mandatory employee meeting, Atkins commented, concerning
whether its current employees were professional enough to
work for Respondent if the Union triumphed in the election,
that “once we went Union . . . there was probably people
among us that I would not call out as a Union operator at the
higher wage” and that Atkins also told the employees, if Re-
spondent went Union, it would have to begin bidding on pro-
jects in other segments of the construction market and would
not be as “competitive” as it had been in the residential market,
probably resulting in “cutbacks” in the work force and “lay-
offs.” In my view, Atkins admitted comment, regarding the
consequences of a union election victory, was intended to con-
vey, to each of the assembled employees, a warning that his
opportunity for continued employment with Respondent would
be jeopardized if the employees selected the Union as their
collective-bargaining representative. Such a veiled threat of
possible job loss was patently coercive and violative of Section
8(a)(1) of the Act. Hoffman Security, 315 NLRB 275, 278
(1984). A finding as to whether Atkins’ comment, regarding
Respondent’s ability to remain competitive and resulting cut-
backs and layoffs, appears to be governed by the Board’s deci-
sion in Harrison Steel Castings Co., 293 NLRB 1158, 1159
(1989), a case involving an identical, although written, state-
ment. Therein, the Board concluded:

In a case devoid of union animus or unlawful threats, an em-
ployer might suggest as a general economic proposition the
bearing that the administrative costs of collective bargaining
[have] on . . . the employer’s competitive position in the mar-
ket. But having manifested overt hostility to the union activi-
ties in its work force . . . Respondent could not lawfully go on
to suggest the loss of jobs as a result of loss of business to the
competition without demonstrating to employees that such a
chain of causation would be brought about through forces be-
yond [its] control. Without more specific, objective data, the
statement in question could just as well be taken to suggest
that . . . Respondent might . . . discharge employees in the
event they chose to be represented by a collective-bargaining
representative.

Here, Atkins accompanied his comments, regarding Respon-
dent’s inability to compete in the residential construction mar-
ket as a union contractor and the possibility of cutbacks and
layoffs, with his above-described unlawful threat of job loss in
the event Respondent’s employees selected union representa-
tion. Moreover, Atkins uttered his comment in the context of
unlawful interrogations and an unlawful threat of business clo-
sure. In these circumstances, and as Atkins offered the em-
ployees no objective evidence to substantiate his linkage of
inability to compete with probable job losses, his comments
could be taken by the assembled employees as a threat of job
loss if they voted for representation by the Union. Accord-
ingly, Atkins comment was violative of Section 8(a)(1) of the
Act. Id. I further find that, regarding negotiating with the Un-
ion, Atkins probably said “that they could drag their heels and
make it go on forever” and that he admitted saying “my under-
standing, by law, that at least once a month we have to sit down
with the Union and show good faith efforts of negotiations for
at least an hour per month.” In either case, there can be little
doubt that Atkins intended his comment to convey to the as-
sembled employees that voting for the Union would be a futile
gesture as Respondent would never agree to a collective-
bargaining agreement. Therefore, I find that Atkins’ comment
was clearly violative of Section 8(a)(1) of the Act. Airtex, 308
NLRB 1135 fn. 2 (1992).
With regard to the final alleged violation of Section 8(a)(1)
of the Act, notwithstanding harboring serious doubts as to
Brent Shreeve’s honesty and cognizant of Bill Matovich’s spe-
cific denial, based on the record as a whole,39 I credit the testi-
mony of Brent Shreeve and find that, just before the representa-
tion election, Matovich approached Shreeve at the Del Webb
jobsite and, after asking if the employees would vote for the
Union, he “proceeded to tell me that Lee Atkins offered us a
dollar an hour raise and they would pay for all of our medical,
dental insurance come [January 1] if we voted no on the Union”
and to tell Shreeve to inform the employees of Atkins’ offer.
Crediting Shreeve and Todd Ewoldt, I further find that, subse-
quently, Shreeve informed several employees, including
Ewoldt, “that the management was offering a dollar an hour
raise and was wanting to pick up our benefits if the Union was
voted out.” Clearly, such a promise of benefits in order to dis-
suade employees from supporting a union is patently unlawful
and violative of Section 8(a)(1) of the Act, and I so find here.
Marriott Corp., 310 NLRB 1152, 1157 (1993).
I turn now to consideration of the consolidated complaint al-
legation that Respondent’s discharges of employees Robert
Rupp and Robert Atteberry were each violative of Section
8(a)(1) and (3) of the Act. In this regard, as to what transpired
on the morning of the day of the discharges, October 25, 1996,
in appraising the respective testimony of Rupp, Brent Shreeve,
and Bill Matovich, I rely on what I perceive as the more candid
testimony of Matovich. While the latter’s testimonial de-
meanor was not that of an entirely candid witness, I was less
impressed with the honesty of either Rupp or Shreeve as to
what transpired that day. Accordingly, I find that, as two
scraper machine operators failed to report for work at Respon-
dent's Seven Hills jobsite that morning, at approximately 7:30,
Matovich telephoned Shreeve and told him he needed two men
to replace the two absent operators, and Shreeve responded
that, due to heavy winds, Atteberry and Rupp could not operate
the screening plant that day and that, after Matovich asked if
Shreeve would send them to the Seven Hills project, Shreeve
said the two operators had just left and were on their way to the
office to obtain their paychecks.40 I further find that Matovich
telephoned to Respondent’s office and was told that Atteberry
and Rupp were standing outside in the parking lot; that, at 8:20,
Matovich placed to a call to Rupp’s cellular telephone number
and Rupp answered; that Matovich began by informing the
employee that two scraper hands had not reported for work that

39 I believe that, the record, as a whole, is corroborative of Shreeve’s
testimony. Thus, Respondent’s acts and conduct, during the preelection
period, including unlawful interrogations of employees, unlawful
threats of business closure and job loss, and warning of the futility of
supporting the Union, are demonstrative of an employer desperate to
deny its employees an uncoerced choice during a representation elec-
tion. Moreover, during the Mardi Gras Hotel meeting, employee ques-
tions established that they were concerned about a raise in pay and
having to pay for their health insurance. Finally, as with the threat of
plant closure, I believe that Matovich was confident that Shreeve would
follow his instructions and inform the employees as to Atkins’ offer.
40 I credit Matovich that Shreeve did not specifically say he had sent
Rupp and Atteberry home or had given them the day off. On the other
hand, as Shreeve said the employees were on their way to the office to
obtain their paychecks, I believe Matovich understood that the two had
been given the day off.
KAJIMA ENGINEERING & CONSTRUCTION 1617
morning at Seven Hills, by asking if Rupp and Atteberry could
come out and operate the scrapers and by adding that Respon-
dent was on a “deadline” and he needed the employees; that
Rupp responded “they had other plans”; that Matovich asked
that they “please come help [him] as he needed them bad”; that
Rupp said he would speak to Atteberry and, after approxi-
mately 10 seconds, came back on the line, saying “we can’t do
it” and “we have other plans”; that Matovich once again said he
needed the two employees to work that day, and Rupp again
declined; and that, finally, Matovich said “fine, if that’s the way
you feel, I’ll get someone else.”41 Also, I find that, after Re-
spondent decided to discharge the two employees, Matovich
met Shreeve at the Pulte Hills jobsite and informed him that
Rupp and Atteberry had been discharged for “refusing to run
scrapers” on the Seven Hills job.42
In determining whether Respondent acted unlawfully by dis-
charging employees, Rupp and Atteberry, I must utilize the
analytical framework, set forth by the Board in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). Thus, in
order to prove a prima facie violation of Section 8(a)(1) and (3)
of the Act, the General Counsel has the burden of establishing
that the alleged discriminatees engaged in union activities; that
Respondent had knowledge of such conduct; that Respondent’s
actions were motivated by union animus; and that the dis-
charges and layoffs had the effect of encouraging or discourag-
ing membership in the Union. WMRU-TV, 253 NLRB 697, 703
(1980). Further, the General Counsel has the burden of proving
the foregoing matters by a preponderance of the evidence.
Gonic Mfg. Co., 141 NLRB 201, 209 (1963). However, while
the above analysis is easily applied in cases in which a respon-
dent’s motivation is straightforward, conceptual problems arise
in cases in which the record evidence discloses the presence of
both a lawful and an unlawful cause for the allegedly unlawful
conduct. In order to resolve this ambiguity, in Wright Line,
supra, the Board established a causation test in all 8(a)(1) and
(3) cases involving employer motivation. “First, we shall re-
quire that the General Counsel make a prima facie showing
sufficient to support the inference that protected conduct was a
‘motivating factor’ in the employer’s decision. Once this is
established, the burden will shift to the employer to demon-
strate that the same action would have taken place even in the
absence of the protected conduct.” Id. at 1089. Three points
are relevant to the foregoing analytical approach. First, in con-
cluding that the General Counsel has established a prima facie
showing of unlawful animus, the Board will not “quantitatively
analyze the effect of the unlawful motive. The existence of
such is sufficient to make a discharge a violation of the Act.”
Id. at 1089 fn. 4. Second, once the burden has shifted to the
employer, the crucial inquiry is not whether Respondent could
have engaged in the discharges and layoffs here, but, rather,
whether Respondent would have done so in the absence of the
alleged discriminatees’ union activities and support. Structural
Composites Industries, 304 NLRB 729 (1991); Filene’s De-

41 I have carefully examined the three record versions of this tele-
phone conversation and do not find them to be inconsistent. Moreover,
I believe the entire conversation could have occurred within 66 sec-
onds, the length of the conversation according to the telephone billing
records.
42 Matovich failed to deny this conversation, and, I believe, he inten-
tionally made this statement to Shreeve.
partment Stores, 299 NLRB 183 (1990). Third, pretextual
discharge cases should be viewed as those in which “the de-
fense of business justification is wholly without merit” (Wright
Line, supra at 1084 at fn. 5) and the “burden shifting” analysis
of Wright Line need not be utilized. Arthur Anderson & Co.,
291 NLRB 39 (1989). As to the latter point, “it is . . . well
settled . . . that when a respondent’s stated motives for its ac-
tions are found to be false, the circumstances . . . warrant the
inference that the true motive is an unlawful one that the re-
spondent desires to conceal.” Flour Daniel, Inc., 304 NLRB
970 at 970 (1991); Shattuck Den Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1966).
In accord with the above-described legal principles, I believe
that Respondent’s terminations of its employees, Atteberry and
Rupp, were violative of Section 8(a)(1) and (3) of the Act. At
the outset, the record evidence establishes that Atteberry en-
gaged in significant union activities, having been the main or-
ganizer for the Union amongst Respondent’s employees and the
labor organization’s observer during the representation election,
and that Rupp aided Atteberry in his efforts during the cam-
paign. The record evidence also establishes that, while it proba-
bly was not aware of Atteberry’s or of Rupp’s support for the
Union during the preelection period, Respondent obviously was
aware that the former acted as the Union’s election observer.
Moreover, I believe that there is a surfeit of record evidence
revealing Respondent’s animus against its employees’ support
for the Union. Thus, I have previously concluded that Respon-
dent engaged in interrogation of employees in an effort to gauge
the extent of support for the Union amongst its employees and
that Respondent threatened employees with closure of the facil-
ity, loss of jobs, cutbacks in the workforce, and layoffs, and I
believe that it engaged in the unlawful acts and conduct in order
to dissuade it employees from supporting the Union.
Further demonstrative of Respondent’s unlawful animus is
the pretextual and sham nature of its defenses to the allegations
involving Rupp and Atteberry. Bluntly put, while Matovich
did, in fact, ask them to accept and the two employees, did, in
fact, refuse work assignments on October 25, the respective
internally and externally inconsistent testimony of Matovich,
Prlina, and Atkins and the record, as a whole, convince me that
the proffered explanation for their discharges was not the veri-
table reason for the discharges––in reality, a canard. Initially,
with regard to the decision-making process itself, Matovich was
internally inconsistent, first testifying that, during his asserted
telephone conversation with Prlina occurring shortly after he
spoke to Rupp, Prlina told him to “do what you want to” and
that, subsequently, he telephoned the company secretary and
instructed her to terminate Atteberry and Rupp and later chang-
ing his testimony and stating that “[Prlina] said do you want me
to go ahead and terminate them then” and that, rather than him,
it was Prlina, who arranged for the terminations.43 Also, Prlina
and Atkins contradicted each other as to the latter’s involve-
ment in the discharges. Thus, while Atkins denied having any
role in the discharge decision, conceding only that “I agreed
with [it]” and that “they just told me what they were doing and
asked if I had a problem with it,” Prlina testified that Atkins
was directly involved—“we determined that we should termi-
nate Robert Rupp and Robert Atteberry . . . .” Next, regarding
43 I note that Matovich and Prlina also contradicted each other as to
whether the Union was mentioned during their asserted telephone con-
versation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1618
Respondent’s asserted practice concerning employees who
refuse a work assignment, while Matovich initially insisted that
Respondent’s policy is to terminate any employee who refuses
a work assignment and denied any practice of permitting em-
ployees to do so, he subsequently changed his testimony in the
latter regard, conceding that, depending on the circumstances,
he might permit a work refusal to “slide.”44 Prlina contradicted
Matovich on this point, denying that Respondent would ever
permit such employee misconduct to slide. Finally, notwith-
standing what Matovich said to Rupp during their telephone
conversation, the record fails to support Respondent’s conten-
tion that it had an urgent need for them operate scraper ma-
chines at the Seven Hills project on October 25. Thus, Respon-
dent’s own records reveal that neither of the two scraper ma-
chines was operated on Saturday, October 26, and Matovich
admitted the reason was that Respondent was sufficiently cur-
rent with scraper work to the point that there was no necessity
to operate the two machines on Saturday. Further, the scraper
machines were operated on a normal schedule on Monday,
October 28, and no overtime was worked on the following Sat-
urday, a normal catchup day. In the foregoing circumstances,
and based on the record as a whole, I am convinced that, when
Rupp informed Matovich that he and Atteberry declined Ma-
tovich’s requests that they report to the Seven Hills jobsite in
order to operate the two down scraper machines,45 Respondent
seized on the opportunity to rid itself of two employees, one,
who, the previous day, had revealed himself as a probable ring-
leader of the Union’s organizing effort, and, to disguise its true
intent,46 another, who, in counsel for the Union's apt words,
was in the wrong place at the wrong time.47 Accordingly, I find
that Respondent violated Section 8(a)(1) and (3) of the Act by
discharging employees, Robert Atteberry and Robert Rupp.

44 Matovich stated that, given numerous refusals to perform assign-
ments on the Seven Hills project, he could not let Rupp’s and Atte-
berry’s misconduct slide. As he offered no corroboration for this asser-
tion, I do not credit Matovich in this regard. Moreover, given Ma-
tovich’s concession that, during his 7:30 a.m. telephone conversation
with Shreeve, he understood the latter as meaning that he had given the
two alleged discriminatees the remainder of the day off, it is reasonable
to conclude that, but for the Union and rather than warranting disci-
pline, this was the type of instance in which Matovich normally would
have permitted an employee’s refusal to perform an assignment to
“slide.”
45 I shall not speculate as to why, during their telephone conversa-
tion, Matovich insisted to Rupp that he required their services at the
Seven Hills jobsite. Whatever Matovich’s motivation, it is clear that
Respondent’s need for their services was not urgent.
46 I agree with counsel for the General Counsel and counsel for the
Union that the real object of Respondent’s unlawful animus was Robert
Atteberry and find merit in the General Counsel’s theory regarding
Respondent’s reason for terminating Robert Rupp. Where, as here, the
existence of union animus is palpable and where the explanation given
for both discharges is not credible, the fact that another employee, in
addition to the employee, who, the respondent believes, was the main
union adherent amongst the employees, is the object of the respon-
dent’s retaliation does not preclude a finding of discriminatory intent.
Consumers Asphalt Co., 295 NLRB 749, 752 at fn. 14 (1989); Alliance
Rubber Co., 286 NLRB 645, 647 (1987).
47 Inasmuch as Matovich understood that such would be more credi-
ble coming from Shreeve, I believe the reason that Matovich fabricated
the reason for the discharges to Shreeve was his expectation that
Shreeve would, in turn, relate this disingenuous explanation to the
alleged discriminatees and to Respondent’s other employees.
Robin Transportation, 310 NLRB 411, 418 (1993); San
Lorenzo Lumber Co., 238 NLRB 1421 (1978).
Turning to the consolidated complaint allegation that Re-
spondent violated Section 8(a)(1) and (3) of the Act by termi-
nating employee, Todd Ewoldt, I again utilize the guidelines,
which were set forth by the Board in Wright Line, supra.
Therefore, the General Counsel’s initial burden was to establish
a prima facie showing that Respondent was unlawfully moti-
vated in terminating Ewoldt, and, in this regard, I believe that
counsel for the General Counsel have failed to meet their evi-
dentiary burden of proof. Thus, inasmuch as there is scant
record evidence of what, if any, activities in support of the Un-
ion Ewoldt may have engaged and as there is no evidence that
Respondent had any knowledge of, or even suspected, Ewoldt’s
support for the Union, counsel rely on the testimony of Brent
Shreeve, concerning an alleged conversation with Matovich the
day after the latter’s unlawful interrogation of the employee,48
and the asserted pretextual nature of Respondent’s defense to
the alleged unlawful discharge as establishing the required
prima facie showing of a violation of the Act. As to the former,
I am unable to credit Shreeve’s assertion that Matovich told
him he was going to fire Ewoldt if the employees selected the
Union as their bargaining representative. Thus, I believe that
Shreeve exhibited a clear bias in favor of the Union, and, as
between Matovich and Shreeve, I found the former to have
been the more credible witness. Moreover, for the identical
reason I believe Matovich gave Shreeve a false explanation for
his terminations of Atteberry and Rupp, I do not believe that,
while speaking to Shreeve, Matovich ever would have men-
tioned the Union in explaining why Respondent believed it
necessary to terminate Ewoldt, who, Matovich knew, was a
friend of Shreeve’s. In these circumstances, the General Coun-
sel has failed to prove that Respondent knew or suspected that
Ewoldt was a supporter of the Union,49 and, as employer
knowledge is one of the elements required for establishing a
prima facie showing of discriminatory motivation, it, therefore,
has failed to prove a violation of Section 8(a)(1) and (3) of the
Act. International Carolina Glass Corp., 319 NLRB 171, 174
(1995); Dorey Electric Co., 312 NLRB 150, 151–152 (1993).
As to the pretextual nature of Respondent’s defense, while
there is record evidence that Respondent selected the alleged
discriminatee for layoff and retained less senior employees and
belatedly raised his attendance record as a reason for his selec-
tion for layoff, in the absence of proof of knowledge, “proof of
suspicious circumstances is not enough.” Dorey Electric Co.,
supra at 151. In these circumstances, I shall recommend dis-
missal of the consolidated complaint allegation pertaining to
the discharge of Todd Ewoldt.
Finally, in examining the consolidated complaint allegation
that Respondent acted in violation of Section 8(a)(1) and (5) of
the Act by laying off employees Robert Hickman, Dan Billsby,
Jim Mathers, Guy Kennedy, Justin McPhie, and Bucky Taylor,
48 Presumably, counsel for the General Counsel would seek that I in-
fer both suspicion of support for the Union and animus from what
Matovich assertedly said. The latter, of course, specifically denied what
was attributed to him by Shreeve.
49 I realize that, while uncorroborated by Shreeve, alleged discrimi-
natee Ewoldt testified that the former reported to him what Matovich
assertedly said; however, the issue is not what Shreeve may have said
to Ewoldt but, rather, what Matovich allegedly said to Shreeve. Ac-
cordingly, the credibility of Ewoldt is not at issue, and it is enough that
I do not believe that Shreeve’s testimony on this point.
KAJIMA ENGINEERING & CONSTRUCTION 1619
I note that much of what occurred is not in dispute. Thus, I find
that the Union was certified as the collective-bargaining repre-
sentative of Respondent’s operating engineer employees on
November 4, 1996; that Hickman, Billsby, Mathers, Kennedy,
and McPhie were laid off in December 1996 and Taylor was
laid off in January 1997; and that, as Respondent concedes, it
laid off each employee without prior notification to the Union
and without affording it an opportunity to bargain over the
decisions to lay off each and the effects of each layoff. Further,
relying on the uncontroverted testimony of James Guin, I find
that the Union did not become aware of the foregoing layoffs
until after the commencement of bargaining for the parties’
initial collective-bargaining agreement when the Union’s agent,
James Guin, compared a list of current employees with those
listed on the election eligibility list. Citing Lapeer Foundry &
Machine, 289 NLRB 952 (1988), counsel for the General
Counsel and counsel for the Union argue that what occurred
herein was an economically motivated decision to lay off em-
ployees; that such a decision constitutes a mandatory subject of
bargaining; and that, therefore, Respondent was obligated to
have provided notice and to have afforded the Union an oppor-
tunity to bargain concerning the decisions to lay off employees
and the effects of those decisions. Taking a contrary view,
counsel for Respondent argue that Respondent was not obli-
gated to have afforded the Union an opportunity to bargain
herein as the lay offs the above six individuals resulted from
Respondent’s entrepreneurial decision to change the scope and
direction of its southern Nevada work from residential to public
works and commercial construction projects and that its con-
duct should be analyzed pursuant to the guidelines set forth by
the Supreme Court in First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981), and by the Board in Dubuque
Packing Co., 303 NLRB 386 (1991).
There is no doubt as to which is the proper analytical ap-
proach. Thus, while in Lapeer Foundry, supra, the Board did
conclude that economically motivated decisions to lay off em-
ployees are mandatory subjects of bargaining, its decision
therein was based on the legal analysis set forth in Otis Eleva-
tor Co., 269 NLRB 891 (1984), which was overruled by the
Board in Dubuque Packing Co., supra, and the Board dis-
avowed use of Lapeer Foundry itself as legal precedent in
Holmes & Narver, 309 NLRB 146, 147 at fn. 3 (1992). There-
fore, Lapeer Foundry may not be relied on as supporting the
General Counsel’s position here. In agreement with counsel for
Respondent, I believe that, as to whether, prior to laying off the
above six employees, Respondent was under a mandatory obli-
gation to have given prior notice to and to have afforded the
Union an opportunity to bargain regarding the layoff decisions,
First National Maintenance Corp. is controlling. Therein, the
issue, before the Supreme Court, was whether an employer's
decision to close part of its business was a mandatory subject of
bargaining, and, in its decision the Court set forth several rele-
vant principles. Thus, noting that Section 8(a)(5) of the Act
mandates bargaining only on matters “that settle an aspect of
the relationship between the employer and the employees,” the
Court described three categories of employer decisions, which
affect employees. “Some management decisions, such as
choice of advertising and promotion, product type and design,
and financing arrangements, have only an indirect and attenu-
ated impact on the employment relationship. . . . Other man-
agement decisions, such as the order of succession of layoffs
and recalls, production quotas, and work rules, are almost ex-
clusively ‘an aspect of the relationship’ between employer and
employee. The . . . third type of management decision, one that
ha[s] a direct impact on employment . . . . involv[es] a change
in the scope and direction of the enterprise” and “is akin to the
decision whether to be in business at all” but is ‘“not primarily
about conditions of employment though the effect of the deci-
sion may be necessarily to terminate employment.’” Id. at 676–
677. According to the Supreme Court, this third type of man-
agement decision constitutes a mandatory subject of bargaining
“only if the benefit, for labor management-relations and the
collective-bargaining process, outweighs the burden placed on
the conduct of the business.” Id. at 679. In this regard, the
Court noted that, “if labor costs are an important factor in a
failing operation and the decision to close, management will
have an incentive to confer voluntarily with the union to seek
concessions that may make continuing the business profitable.”
Id. at 682.50
With regard to the layoffs at issue here, based on the testi-
mony of Takefumi Takuma, I find that, commencing in August
or September 1996, as part of a corporatewide restructuring and
in order to ascertain the reasons for the profitability or lack
thereof of its existing construction projects in the southern Ne-
vada area, Respondent placed a moratorium on bidding for new
jobs by its Las Vegas office; that, as a result, during the fall of
1996, Respondent’s only work in this area consisted of com-
pleting its existing jobs; and that, as each project neared com-
pletion, no positions were available to which employees could
be transferred. Further, specifically concerning the six employ-
ees at issue, Takuma admitted, and I find, that “the direct rea-
son for [their] layoffs was lack of work.” Moreover, the instant
layoffs occurred in December 1996 and January 1997, and,
while Takuma testified that, concurrent with Respondent’s
review of its existing Las Vegas construction projects during
the fall of 1996, it began calculating the types of projects for
which it would bid in the future, he further admitted, and I fur-
ther find, that the actual decision to change its market concen-
tration from the residential to the public works and commercial
construction markets was not reached until “beginning probably
February . . . . 1997”—several weeks after the instant layoffs
occurred. In these circumstances,51 as Respondent’s layoff

50 In analyzing whether a duty to bargain exists in the third category
of managerial decisions, the Board, in Dubuque Packing Co., supra,
which involved a decision to relocate a plant, adopted a multipart bal-
ancing test, which, counsel for Respondent contend, should be applied
herein. Pursuant to said test, the General Counsel has the burden of
establishing that Respondent’s decision is unaccompanied by a change
in the basic nature of the employer’s operations. If such is established,
the burden shifts to the employer to establish that, in fact, there has
been a change in the scope of its operations or that direct or indirect
labor costs were not a factor in its decision or, if a factor, that the union
could not have offered concessions sufficient to change the employer’s
decision.
51 I agree with counsel for the General Counsel and counsel for the
Union that Respondent has failed to prove that its change from bidding
on residential construction work to bidding on public works and com-
mercial construction projects constituted a change in the scope and
direction of its work. Thus, notwithstanding different job markets,
there is no record evidence that the nature of Respondent’s heavy con-
struction work would change. Takuma was extremely candid on this
point, admitting that the new jobs, for which Respondent was bidding,
required the same types of equipment operators and use of the same
types of equipment, which Respondent utilized on residential construc-
tion work––bulldozers, scrapers, and water pull trucks. Moreover,
Takuma continually admitted that the shift in construction markets was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1620
decisions appear to have been directly related to the availability
of work and predated its decision to change its job markets,
rather than falling within the First National Maintenance Corp.
third category of entrepreneurial management decisions aimed
at changing the scope and direction of the enterprise, they are
more akin to the First National Maintenance Corp. second
category of management decisions, such as the order of succes-
sion for layoffs and recalls, production quotas, and work rules,
which are “almost exclusively ‘an aspect of the relationship’
between employer and employee” and are mandatory subjects
of bargaining. Therefore, as it is unnecessary to engage in the
Dubuque Packing Co., supra, type of multistep analysis regard-
ing subjects falling within this category, I find that the lack of
available work layoff decisions here constituted mandatory
subjects of bargaining. Winchell Co., 315 NLRB 526 at fn. 2
(1994); Westinghouse Electric Corp., 313 NLRB 452, 453
(1993); Holmes & Narver, supra at 147. Accordingly, I con-
clude that Respondent unlawfully implemented its layoffs of
the six named employees without affording the Union adequate
notice and an opportunity to bargain about its decisions and
that, by failing to do so, Respondent engaged in conduct viola-
tive of Section 8(a)(1) and (5) of the Act.
While conceding that Respondent was also obligated to have
engaged in bargaining with the Union over the effects of the
layoffs of its six employees, counsel for Respondent argue that
such, in fact, occurred and that, therefore, the Union is pre-
cluded from seeking a remedy here. Initially, there is no dis-
pute that, prior to the any of the six layoffs, Respondent failed
to afford the Union an opportunity to bargain over the effects of
each. In Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021 (1994), an employer failed to afford a union notice of
layoffs until after the layoffs had been effectuated. In affirming
the administrative law judge’s finding that the obligation to
afford a union an opportunity to bargain over the effects re-
quires such bargaining before the decision is implemented, the
Board held that the respondents “were obligated to provide the
Union with preimplementation notice of the decision to close
the [facility] to satisfy an employer’s effects-bargaining obliga-
tion . . . .” Id at 1022 at fn. 8. The Board reached an identical
result in Chrissy Sportswear, 304 NLRB 988, 989 fn. 6 (1991),
holding that “preimplementation notice” is required to satisfy
an employer's effects bargaining obligation. Here, there can be
no doubt that Respondent’s failure to afford the Union an op-
portunity to bargain over the effects of the layoffs of the six
employees prior to implementation of each layoff was patently
violative of Section 8(a)(1) and (5) of the Act, and I so find.
Notwithstanding Respondent’s failure to permit the Union to
engage in effects bargaining prior to each of the layoffs, coun-
sel for Respondent argue that their client’s effects bargaining
obligation was satisfied during the parties’ subsequent initial
contract bargaining and that no remedy should be ordered. As
to what occurred during the said bargaining, as, between Lee
Atkins and Mickey Adams, I was more impressed with the
demeanor of the latter while testifying and believe he testified
in a more forthright manner than did Atkins, I rely on Adams’
version of what occurred. Therefore, I find that, while the gen-
eral subject of layoffs may have arisen during the bargaining,
the specific layoffs of the six employees, named in the consoli-

directly related to increased labor costs, caused by Respondent's status
as a union signatory contractor, and such, is, of course, directly amena-
ble to collective bargaining.
dated complaint, were never discussed during the bargaining.
On this point, while, as a result of bargaining, a list of employ-
ees, including the names of the six individuals at issue, whom
Respondent agreed to reemploy when work became available,
was attached to the parties’ collective-bargaining agreement,
contrary to Respondent’s counsel, I do not view this as satisfy-
ing Respondent’s effects bargaining obligation herein. Further,
effects bargaining is most effective prior to implementation of
an employer's action, a time when the union retains some bar-
gaining leverage. Once the act becomes a fait accompli, as
herein, a union is relegated to the status of a supplicant, a posi-
tion incompatible with the purposes and policies of the Act. In
these circumstances, especially noting that no specific discus-
sion regarding the six employees occurred during the bargain-
ing, I reject counsel for Respondent’s contention and find that
their client’s obligation to bargain over the effects of the layoffs
remained unfulfilled during the subsequent contract negotia-
tions.
CONCLUSIONS OF LAW
1. 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. At all times since November 4, 1996, based on Section
9(a) of the Act, the Union has been the exclusive collective-
bargaining representative of Respondent’s employees, who
perform the work traditionally performed by members of the
Union, including, but not limited to, equipment operators, me-
chanical and maintenance personnel, surveyors, and grade
checkers, in Counties of Clark, Lincoln, Nye, and Emeralda in
Southern Nevada; excluding all other employees, truckdrivers,
employees covered by other labor agreements, office clerical
employees, professional employees, guards, and supervisors as
defined in the Act, for purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
4. By interrogating its employees regarding their union sym-
pathies and the Union sympathies of their fellow employees,
Respondent engaged in conduct violative of Section 8(a)(1) of
the Act.
5. By threatening its employees with closure of Respondent’s
Las Vegas operations if they selected the Union as their bar-
gaining representative, Respondent engaged in conduct viola-
tive of Section 8(a)(1) of the Act.
6. By threatening its employees with loss of their jobs if they
selected the Union as their bargaining representative, Respon-
dent engaged in conduct violative of Section 8(a)(1) of the Act.
7. By threatening its employees that Respondent would be
less competitive, resulting in probable cutbacks and layoffs, in
the residential construction market if they selected the Union as
their bargaining representative, Respondent engaged in conduct
violative of Section 8(a)(1) of the Act.
8. By informing its employees that it would drag its heels
and prolong negotiations forever and that it was, by law, only
required to bargain with the Union once a month for an hour,
Respondent threatened employees with the futility of selecting
the Union as their bargaining representative, thereby engaging
in conduct violative of Section 8(a)(1) of the Act.
9. By promising its employees a wage increase and fully paid
medical and dental insurance if they voted against the Union as
their bargaining representative, Respondent engaged in conduct
violative of Section 8(a)(1) of the Act.
KAJIMA ENGINEERING & CONSTRUCTION 1621
10. By discharging its employee, Robert Atteberry, because
it believed he had been a leading proponent of the Union
amongst its employees and by discharging its employee, Robert
Rupp, in order to disguise its actual reason for discharging At-
teberry, Respondent engaged in conduct violative of Section
8(a)(1) and (3) of the Act.
11. By laying off its employees, Robert Hickman, Dan
Billsby, Jim Mathers, Guy Kennedy, Justin McPhie, and Bucky
Taylor due to lack of work without giving prior notice of each
layoff to the Union and affording the Union a prior opportunity
to bargain regarding each layoff decision and the effects of
each layoff, Respondent engaged in conduct violative of Sec-
tion 8(a)(1) and (5) of the Act.
12. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
13. Respondent has committed no violations of the Act un-
less expressly found here.
REMEDY
Having found that Respondent has engaged in serious unfair
labor practices violative of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative actions necessary to
effectuate the purposes and policies of the Act.
Having concluded that Respondent violated Section 8(a)(1)
and (3) of the Act by terminating its employees, Atteberry and
Rupp, on October 25, 1996, I shall recommend that it be or-
dered to offer them immediate and full reinstatement to their
former positions of employment, without prejudice to their
seniority or other rights and privileges and that it make them
whole for any loss of earnings and benefits lost as a result of
the discrimination practiced against them, 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 Re-
tarded, 283 NLRB 1173 (1987). Further, having concluded
that Respondent violated Section 8(a)(1) and (5) of the Act by
laying off its employees, Hickman, Billsby, Mathers, Kennedy,
McPhie, and Taylor, I shall recommend that it be ordered, on
request, to bargain with the Union with regard to each layoff
decision and the effects of each layoff. I shall also recommend
that Respondent be ordered to offer to each of the six employ-
ees immediate and full reinstatement to his former job or, if the
job no longer exists, to a substantially equivalent position and
to make whole each employee for any loss of earnings and
other benefits suffered as a result of its unlawful unilateral ac-
tion. Backpay shall be calculated in the manner set forth in F.
W. Woolworth Co., supra, with interest to be computed in the
manner set forth in New Horizons for the Retarded, supra.
[Recommended Order omitted from publication.]