Kenny/Obayashi V, A Joint Venture

National Labor Relations Board - Administrative Judge Opinions

Mar 12, 2020

08-CA-226350 (N.L.R.B. Mar. 12, 2020)

JD–09–20
Akron, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KENNY/OBAYASHI V, A JOINT VENTURE
BETWEEN KENNY CONSTRUCTION COMPANY
AND OBAYASHI USA, LLC
and Case 08–CA–226350
LABORERS’ LOCAL UNION NO. 894 A/W LABORERS
INTERNATIONAL UNION OF NORTH AMERICA
Cheryl Sizemore, Esq.,
for the General Counsel.
Nadia A. Lampton, Esq. and
Robert T. Dunlevey, Esq.
for the Respondent.
Basil W. Mangano, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This case was tried in Cleveland,
Ohio, on August 6 - 9, 2019 and October 7, 9, and 10, 2019. The Laborers’ Local Union No. 894
a/w Laborers International Union of North America (the Charging Party or Union) filed a charge
on August 27, 2018,1 and the General Counsel issued a complaint and notice of hearing in this
matter on April 25, 2019.2
The complaint alleges that the Respondent discriminated against employee Ivan Thompson
by laying him off and/or terminating him for his assistance to the Union and for engaging in
protected concerted activities, in violation of Section 8(a)(3) and (1) of the Act.3 In its answer to
the complaint, the Respondent denied the allegations.

1 An amended charge was filed by the Union on October 15, 2018, a second amended charge was filed
on November 5, 2018, a third amended charge was filed on November 19, 2018, and a fourth amended
charge was filed on July 17, 2019.
2 The General Counsel also issued an amendment to complaint on July 23, 2019. All dates are 2018,
unless otherwise indicated.
3 The General Counsel amended the complaint at trial to allege that Thompson was “laid off and/or
terminated” instead of simply being “terminated.” (Tr. 891–892.)
JD–09–20
2
On the entire record,4 including my observation of the demeanor of the witnesses,5 and
after considering the briefs filed by the General Counsel, the Union,6 and the Respondent, I make
the following5
FINDINGS OF FACT
I. JURISDICTION
10
Respondent Kenny Construction Company is an Illinois corporation and a wholly-owned
subsidiary of Granite Construction, Inc. Respondent Obayashi Corporation is a Japanese
corporation. The parties stipulate that Kenny/Obayashi V, a Joint Venture, is a joint venture
between Kenny Construction Company, a wholly-owned subsidiary of Granite Construction, Inc.,
and Obayashi USA, LLC, a wholly-owned subsidiary of Obayashi Corporation. (Tr. 16–17; Jt. 15
Exh. 1.)7 The Respondents, in their joint venture, with an office and place of business in Akron,
Ohio, have been engaged in the business of constructing the Ohio Canal Interceptor Tunnel in
Akron, Ohio. The Respondents admit, and I so find, that annually in conducting their business
operations described above, they purchased and received at the Akron, Ohio facility goods valued
in excess of $50,000 from points outside the State of Ohio. 20
It is also admitted, and I so find, that Respondents, in their joint venture, have been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and
that the Union has been a labor organization within the meaning of Section 2(5) of the Act.
25
30

4 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “Jt. Exh.” for Joint Exhibit; “CP Exh.” for Charging
Party/Union Exhibit; “GC Br.” for the General Counsel’s brief; “R. Br.” for Respondent’s brief; and “U.
Br.” for the Union’s brief.
By Order dated December 2, 2019, the Respondent’s Motion to Reopen the Record for the limited
purpose of including evidence of telephone records dated August 24 through September 15, 2018 from
Respondent Superintendent Michael Quinn was granted. Those records, which were attached to the
Respondent’s motion as Exhibit A, were ordered admitted into evidence and marked as Respondent Exhibit
15.
5 In making my findings regarding the credible evidence, including the credibility of the witnesses, I
considered the testimonial demeanor of such witnesses, the content of the testimony, and the inherent
probabilities based on the record as a whole. In addition, I have carefully considered the testimony in
contradiction to my factual findings, but I have discredited such testimony.
6 The Union’s posthearing brief consisted only of its statement that it “. . . concurs with and
incorporates by reference Counsel for the General Counsel’s Brief to the Administrative Law Judge . . .
dated December 13, 2019.” (U. Br.)
7 Kenny/Obayashi V, a Joint Venture, will be collectively referred to as “Respondent.”
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II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
5
1. Background
Many of the facts in this case are undisputed. The Respondents, in November 2015,
pursuant to their joint venture agreement executed on December 5, 2014, commenced construction
on the Ohio Canal Interceptor Tunnel (referred to as the OCIT project) in Akron, Ohio. (Jt. Exh. 10
2; Tr. 145.) The purpose of the OCIT project was to reduce overflow of sewage in rivers and
waterways, and its main feature consisted of a mile-long finished tunnel that was 27 feet in
diameter. (Tr. 42.) The project was designed to catch all sewers throughout the City of Akron, and
divert them to the main portal site. The Respondent maintained three primary jobsites on this
tunnel work project, including the jobsite at issue located at 144 Cuyahoga St., in Akron, known 15
as the Cuyahoga site or OCIT-1 site. (Tr. 43–44.) The Respondent’s project included placing deep
foundation shafts for the tunnel at the three main sites. The Respondent’s main office for the
Akron, Ohio project was located in the main trailer at the OCIT-1 site. (Tr. 43.)
Respondent Project Manager David Chastka oversaw all aspects of the job and was 20
responsible for the supervision of all field staff, including: General Superintendent Mike Quinn;
Night Superintendent Terry Quinn; Project Engineer John Criss;8 Safety Manager Brad Swinehart;
Day-shift Tunnel Foreman Jack Harris; Night-shift Tunnel Foreman Travis Heatley; and Yard
Crew Day-Shift Foreman Mark Seese. (Tr. 46–47; Jt. Exh. 4) Mike Quinn and his son Terry Quinn
were brought to the project from earlier tunnel projects and were members of the Laborers’ Local 25
out of Chicago, Illinois. Jack Harris likewise came from a previous project and was a member of
a Laborers’ Local out of Columbus, Ohio. (Tr. 47–48.) Project Manager David Chastka was
responsible for terminating, laying off, and hiring all employees on the Akron OCIT Project. (Tr.
99.) Chastka testified that “termination” on the project was interpreted as the end of employment,
whether it was for layoff or cause. (Tr. 100.)30
The employees hired to work on the Akron OCIT project were mostly members of the
Local Operators Union and the Laborers’ Local 894 Union, which represented the laborers
employed in the Akron, Ohio area. (Tr. 181–182; Jt. Exh. 2; GC Exh. 1(i).) The Respondent and
Local 894 were signatories to a Project Labor Agreement (PLA) between the City of Akron, the 35
Tri-County Building and Construction Trades Council, and various affiliated unions. (Jt. Exh. 2)
The PLA was executed on July 1, 2014, for purposes of facilitating construction of the Ohio Canal
Interceptor Tunnel and to address the terms and conditions of employment for employees on that
project. (GC Exh. 14; Jt. Exh. 2.) Section 6 of the PLA contained a nondiscrimination provision
which prohibited discrimination based on age, race, creed, color, sex, veteran status or national 40
origin as it related to hiring, training, promotion, transfer or termination of employees. (GC Exh.
14) The PLA also provided that covered employees utilize the PLA’s grievance procedure to
resolve specified claims of employment discrimination. (GC Exh. 14.)

8 David Chastka testified that John Criss left the project in May or June 2018. (Tr. 71–72)
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The excavation of the tunnel was performed by use of a tunnel boring machine (TBM), a
55 foot-long piece of equipment with 300 feet of attached trailing gear which included ventilation,
power, and hydraulic equipment. (Tr. 52.) The TBM typically excavates 5 feet and then installs a
pre-cast concrete ring (made from concrete segments), thus slowly moving forward until it breaks
through at its destination. (Tr. 53.) When the project began in November 2015, the Respondent 5
initially relied on its own crew of two to three experienced workers it had transferred from another
project in Columbus, Ohio, and its main subcontractor for its surface and site setup work. (Tr.
177.) Once the TBM arrived, the project intensified with all employees working on day shift to
assemble the machine, which was an involved and arduous process. (Tr. 178–181.) Chastka
testified that the work force was at its peak from around June 2016 to February 2017, when the 10
smaller shafts and tunnels were being put in to support the excavation from the top. (Tr. 183–184)
The TBM was launched sometime after February 2017 and the mining work on the main tunnel
was conducted throughout that time until the end of August 2018, when the TBM broke through
the retrieval shaft. (Tr. 183–185.)
15
The Respondent’s employees were not separated into different crews or shifts until the
shaft work was completed and mining began. (Tr. 181.) After hiring its superintendent and
foreman to begin the shaft work, all of the Respondent’s hires on the project came from local
unions, which at the time were mostly “laborers” and “operating engineers.” (Tr. 181–182.) The
work force consisted of a tunnel crew of about 15 employees working on the TBM as it operated.20
(Tr. 53.) The Respondent also employed a separate crew on the surface which was referred to as
the “Yard Crew,” “Bull-Gang Crew,” or the “Surface Crew,” and which consisted of
approximately 10 employees who would bring in supplies as needed to the crew for the tunnel
excavation. Steel storage containers used to move equipment and supplies from job to job, referred
to as “Conex Boxes,” were used at the site. (Tr. 61.) The Yard Crew was responsible for 25
maintaining the 15 to 20 Conex Boxes and they brought needed tools and items from the Conex
Boxes to the Tunnel Crew. (Tr. 62.) The Yard Crew also maintained the yard by cleaning it up
and cutting trees as required. When the TBM was assembled and running, the Yard Crew helped
maintain the shop on the surface that was utilized to make repairs to the operation. (Tr. 60.)
Chastka testified that only a handful of employees brought in on the project had experience on the 30
TBM, and that the people who were hired in the Tunnel who did not have experience were from
Laborers’ Local 894. (Tr. 56.) Chastka testified that the work crews sometimes changed as the
work progressed. (Tr. 181, 365.) It is undisputed, however, that the Tunnel crew earned more
money than the Yard Crew because they worked longer hours. (Tr. 57.)
35
Chastka testified that the Respondent had a good relationship with the Union and Local
894 Union Business Agents Vernon Floyd and Bill Orr. At the busiest time, 35 Laborers were on
the OCIT project. (Tr. 182.) Chastka testified that Respondent’s typical procedure for layoffs
involved contacting the Union’s business agent prior to the layoff to let the Union know that a
layoff was coming, but there was no formal documentation or paperwork provided until the day 40
of termination. (Tr. 64; 102.)
2. Ivan Thompson started working on the Akron Project in August 2017
Ivan Thompson, an African-American journeyman member of Laborers’ Local 894, was 45
hired by the Respondent through the Union hiring hall in August 2017. (Tr. 710.) He started work
on the project by helping to assemble the TBM. Ivan Thompson worked with his son, Monty
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Thompson (also a Local 894 member), and employee Jason Dolan for approximately 2 -1/2 months
on the TBM assembly. (Tr. 54–55.) All other employees at that time assisted in the assembly of
the TBM, and there were not separate crews. (Tr. 54; 178–181) At that time, Jack Harris served
as the foreman for Ivan and Monty Thompson. When the assembly of the machine was completed,
the work force was split into crews. Ivan and Monty Thompson were moved to the Yard Crew 5
where they performed general labor work. (Tr. 195) The Superintendent on the project was Mike
Quinn, and in November 2017, Local 894 Laborer Mark Seese was promoted to Yard Foreman
where he supervised Ivan Thompson, Monty Thompson, Elijah Dadbeth, Bill Heatley, Sherri
Shaffer, Brandon Nucci, Mark Strong, Mia Turner, and Patricia Wheeler. (Tr. 197–198; 228–229;
713.) 10
In December 2017, the TBM temporarily stopped working during the tunneling and the
Local Union was informed that employees would be laid off. An email was sent to the Union
informing it that layoffs would occur with an attached chart identifying the employees that were
being laid off and informing the Union that the Respondent intended to recall all those employees 15
once the TBM was repaired. (GC Exh. 4; Tr. 68–69.) On that occasion, 5 to 6 employees (most
of them from the Yard Crew) were laid off for the duration of time that the machine was down,
which was approximately 2 to 3 weeks. (Tr. 69; 326–327.) Ivan Thompson was one of those
employees who was laid off for 3 weeks. (Tr. 329; 726.) When the TBM started up again and
there was work to perform, Thompson and the rest of the laid off employees were recalled around 20
January 30, 2018. (Tr. 69; 329; 726.)
As part of the yard crew, Ivan Thompson’s work consisted of an assortment of labor tasks,
such as building sheds and small structures, maintain tools and Conex boxes by arranging the tools
in them and sometimes bringing tools and parts to other employees, pulling parts and restocking 25
parts in the shop, maintenance work outside and around buildings, performing general cleanup and
yard maintenance, weed whacking and yard maintenance around fencing, packing lumber and
other material for shipping, and assisting in the handling of deliveries or shipments, including
“segments” that were shipped in by truck.9 (Tr. 61–-62; 91–93; 714; 717–723; 918;1129–1130.)
These tasks were the duties and functions of the entire yard crew, and not solely Ivan Thompson’s 30
responsibilities. (Tr. 1129.)
Foreman Mark Seese, a witness called by the General Counsel in support of its case-in-
chief, testified that he was hired by Respondent in April 2017 and subsequently became a foreman
for the first-shift Yard Crew in November 2017. (Tr. 197–198; 275.) He supervised Ivan 35
Thompson for 8 months and he testified that Thompson’s job duties consisted of “just general
cleanup, housekeeping, [and] organizing [the Conex Boxes which held tools, parts, and
equipment].” (Tr. 212.) Seese testified that he believed that Ivan Thompson was the most
experienced yard worker based on his belief that Thompson had a “general knowledge” of where
things were in the Conex Boxes and he was “very organized and clean.” (Tr. 245–246) The record 40
reveals that Ivan Thompson also performed a significant amount of segment work. Both Seese
and Monty Thompson testified that Ivan Thompson performed much of the segment work, and

9 The segments were concrete rings sections or liners that weighed approximately 11,000 pounds each.
(Tr. 92.) Eight of the segments were attached together to form a circle or ring that formed the tunnel walls.
(Tr. 92.) Chastka testified that Ivan Thompson worked on the segments for the entire project. (Tr. 918.)
JD–09–20
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Monty Thompson testified that he trained his father on how to perform that work and fill out the
paperwork associated with the segment deliveries. (Tr. 211, 1273–1277.)
With respect to the duration of the project for the yard crew, Seese testified that Quinn told
him that the Yard Crew would likely be working after the TBM broke through, and Chastka told 5
him that the Yard Crew would be the last people on the jobsite for the Respondent. (Tr. 215–219.)
There is no evidence, however, that either Chastka or Quinn gave any assurances that certain yard
crew employees would be guaranteed to work on the jobsite to the very end of the project. With
regard to the expected duration of Ivan Thompson’s work for the Respondent, Seese testified that
between the time shortly after he became a foreman in November 2017 and the time of the “broom 10
incident,”10 which occurred in or before June 2018, Superintendent Mike Quinn told him “multiple
times” that Ivan (and Monty) Thompson would be the first ones removed from the jobsite. (Tr.
290–291.)
3. In early August 2018, Respondent had been preparing for a reduction in force because the 15
tunnel work was coming to an end, and on August 7, 2018, it provided the Union with
notice of the upcoming layoff
The record establishes that in early August 2018, the Respondent had been preparing for a
reduction in force and it conveyed that fact to the Union. (GC Exh. 18) In that connection, in an 20
August 7, 2018 email from Chastka to Bill Orr, Chastka informed him that “we should discuss the
upcoming layoffs associated with the tunnel work coming to an end….” (GC Exh. 18.) Chastka
testified that the yard crew was specifically going to have reductions in staff by virtue of the fact
that the majority of the work that the yard crew was performing was winding down. (Tr. 139;
1133.) Chastka also testified that the TBM was getting close to reaching the retrieval shaft, which 25
meant that the tunneling would soon be completed and the segment work would be come to an
end. (Tr. 1137-1139)
4. In early August 2018, Local Union 894 Business Agent William Orr contacted Chastka
regarding concerns the Union had about its Laborers30
In early August 2018, Bill Orr contacted Chastka about concerns he had with the
Respondent’s treatment of the Laborers which stemmed from the terminations of Carrington

10 As will be discussed more fully below, the “broom incident,” which Seese testified he witnessed,
occurred sometime between December 2017 and June 2018. (Tr. 288–289.) In that “incident,” a laborer
named Raychel Shaffer demanded that Monty Thompson take her to the shop to get a broom because he
was in the truck. Monty Thompson refused. (Tr. 280–283.) According to Seese, Shaffer then walked over
the bridge to the shop, and shortly after that Jack Harris came across the bridge “looking like he was on a
mission headed toward Monty.” (Tr. 282.) Harris, who was supposedly a close friend of Shaffer, apparently
had words with Monty. Ivan Thompson, who was also present, got between Harris and Monty to break it
up. (Tr. 752–756.) Ivan and Monty Thompson then went to the trailer to report what happened to Chastka,
and Vern Floyd was called to the jobsite to intervene and he apparently resolved the situation. (Tr. 752–
756.)
There is are no allegations or assertions by the General Counsel that Ivan Thompson’s participation
in the “broom incident” constituted protected concerted activity, or that he was in any way discriminated
against in violation of the Act for his actions in that incident.
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Chatman and Andre Dabne, two African-American Local 894 members on the Akron project.11
(Tr. 101; 959.) Specifically, on August 7, 2018, Orr sent an email to Chastka regarding the
termination of Chatman and seeking a justification for that action. (GC Exh. 18.) Chastka sent an
email to Orr that same day explaining the reason he decided to layoff Chatman. (GC Exh. 18.)
This lead to the Union raising concerns about the terminations of Chatman and Dabne. (Tr. 344–5
345.) On August 8, 2018, the Union, unsatisfied with Respondent’s explanation regarding the
terminations of Chatman and Dabne, requested a meeting under section 12 (Disputes and
Grievances) under the Project Labor Agreement (PLA) in order to initiate step 1(a) of the
grievance-arbitration provision. (GC Exh. 6.)
10
On August 9, 2018, Chastka met with Orr and Floyd about the grievance and the focus of
that meeting, while initially on those two employees, turned into more of a global union concern
over the Respondent’s management practices regarding Local 894 affiliation and race. (Tr. 109–
110.) The minutes from that meeting state that the reason for calling it was “to initiate the formal
process to address unfair labor practices and discrimination of workers based on race and affiliation 15
to Local 894.” (GC Exh. 6.) In that meeting, the union officials provided photographs of what
they believed showed disparate treatment toward Local 894 employees. Those photographs
depicted Caucasian employees who were not Local 894 members working in the Tunnel (referred
to as travelling laborers) who were engaged in conduct or infractions similar to that which Chatman
and Dabne were accused of, such as talking on cell phones, smoking, sitting on buckets, and 20
sleeping while on the job. (Tr. 111–115; GC Exh. 3.) Some of those Caucasian employees were
written up but, unlike Chatman and Dabne, they were not discharged for those offenses. (Tr. 157–
158.) Thus, one of the concerns that the Union brought to Chastka’s attention between August 3
and 9, 2018, was that African-American Local 894 members were not treated similarly to the
Caucasian employees or the non-Local 894 members. (Tr. 116; 962–963.) 25
Chastka’s testimony confirmed that at the grievance meeting the Union raised concerns of
disparate treatment and more of a “global problem” than just the two individuals. (Tr. 351–354.)
He characterized it as a “[p]roblem of overall management and a feeling of our management
discriminating based on local affiliation and race.” (Tr. 354; 962–963.) 30
5. On August 9, 2018, even though the project was winding down, the Respondent hired
some additional laborers to perform some needed work on the upcoming removal of the
tunnel boring machine from the tunnel
35
Chastka testified that when the tunneling or mining was at “full tilt” he had two crews
running the tunnel work and the Yard Crew was busy supplying support work. (Tr. 336–337.) He
testified that he needed additional personnel, and on August 9, 2018, he hired additional laborers,
such as Tyler Dettra, Bart Hanlon, and Cullen Rogers. (Tr. 338; 1177–1178.) Chastka testified
that the Respondent anticipated the TBM would soon break-through in about a month (what he 40
referred to as “holing through”) and complete the tunneling by hitting the shaft. (Tr. 336–337.)
Once that occurred, the Respondent needed the newly hired laborers to “prep for the mining
machine to be able to come through the shaft wall, build a cradle, and [create] a surface to be able

11 Andre Dabne’s employment was terminated for allegedly sleeping on the job. (Tr. 349–352; 506.)
Chastka indicated that the formal reason Chatman was terminated or laid off was that he was only with the
Respondent for 2 weeks and “showed inconsistencies with attendance.” (GC Exh. 18.)
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to pull the machine out and rip it apart.” (Tr. 1157–1158.) He described putting in “a cradle,” as
two large steel beams that get encased in concrete and which basically “catch the [tunnel boring]
machine as it’s coming out [of the shaft or tunnel] so you can get it to the point of demobilization.”
(Tr. 337.) In addition, due to the size of the crane and its placement against the mining shaft (which
could collapse the wall), the Respondent needed to dig out and pour in concrete bases and put in 5
“crane mats” to stabilize it pursuant to the “designer’s recommendation. . . to make sure [they]
didn’t have any problems with the shaft.” (Tr. 337.)
According to unrebutted testimony of Chastka, the Respondent was “still in full-tilt mining
at that point, so [it] had both crews running the tunnel, and the yard crew was still busy, so [it] had 10
to hire some additional guys to go take care of that work.” (Tr. 337.) Thus, the record reflects that
the additional laborers were hired to perform newly needed auxiliary work that had to be completed
at the retrieval shaft where the TBM was going to come out of the tunnel, while the existing yard
crew laborers were working in other areas on other tasks as they still had to perform their work
while the mining was happening, and both types of work had to be completed at the same time. 15
(Tr. 98–99; 337–338; 1157–1158; GC Exh. 32 (a) and (b); R. Exh. 6.)
6. Moncada’s investigation during the week of August 13 - 18, 2018
After the August 9, 2018 meeting with the Respondent and Union failed to resolve 20
the grievance, it progressed to the next step. That step was handled by Granite Construction’s
Corporate office out of Watsonville, California, on behalf of the Kenny/Obayashi Joint Venture.
(Tr. 124.) The grievance was specifically handled by Catherine Moncada, who at the time held
the title of labor relations manager for Granite Construction. (Tr. 423.) Moncada left California
for Akron, Ohio on Wednesday, August 15, 2018, and she arrived on Thursday, August 16, 2018. 25
(Tr. 1186; 1189.) It is undisputed that Moncada was acting on the authority of the Respondent
while she was there to address the concerns raised by the Union in its grievance. (Tr. 125–126;
431.) Moncada interviewed Travis Heatley, Terry Quinn, and Jack Harris related to the grievance,
which as she testified, initially concerned Chatman and Dabne. (Tr. 433–434.) That evening after
the interviews, Moncada spoke to Union Business Agents Orr and Floyd at the union hall regarding 30
the grievance. (Tr. 432–433.) They told her that the Union had concerns that went beyond those
concerning Chatman and Dabne, and they specifically indicated that they had broader concerns
related to discrimination based on race and union affiliation with respect to Local 894. (Tr. 433;
436–439; 966–967; 1191–1192) Moncada testified that, based on that information and the serious
nature of the concerns raised by the Union, she decided to stay at the jobsite on Friday, August 17, 35
2018, and conduct a broader investigation, instead of flying back to California as planned. (Tr.
436–439; 547; 1191–1192.)
On August 17, 2018, Moncada went to the jobsite trailer at 144 Cuyahoga Street and
initially interviewed non-Local 894 members, such as two to three operating engineers who 40
worked on the OCIT job. (Tr. 1193.) She testified that in questioning those individuals, she was
trying to find out whether allegations of “rampant discrimination” on the jobsite had merit, and
she asked about the treatment of people and things people may have heard, witnessed, or observed.
(Tr. 1193.) She also inquired about “double standards in place” between Local 894 members and
nonmembers, supervisors and employees, African American employees and Caucasian employees, 45
and African-American employees and Caucasian supervisors. (Tr. 1193–1194.)
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When Orr and Floyd arrived at the trailer that morning, Moncada began her interviews of
the Local 894 members. (Tr. 1194.) Moncada testified that her intent was to interview all the Local
894 members who were at the jobsite that day. (Tr. 1195) Moncada’s interviews on August 17 for
the Local 894 members were all in person in the conference room of the jobsite trailer and they
were attended by Orr and Floyd,12 who assured those being interviewed that they could be honest 5
and open regarding the information they were providing. (Tr. 159; 442.) Moncada informed those
being interviewed that they were there to discuss “double standards” or “racial issues.” (Tr. 442.)
She also gave them assurances that there would be no retaliation for participating in the interviews.
(Tr. 548–549.)
10
Moncada conducted interviews on August 17, 2018, with approximately 17 laborers, and
went on to interview approximately 26 individuals in total, including operating engineers that day.
(Tr. 443–447.) Those interviewed included: Ivan Thompson, Monty Thompson, Mark Strong, Joe
Minor,13 Derrick Martin, Greg Daugherty, Mia Turner, Carl Johnson, Tim Snyder, Andrew Snyder,
Mike Hayden, Alpha Souare, Mark Seese, Andre Dabne, Elijah Dadbeh, Matt Harris, Carrington15
Chatman, Sergio Meyricks, Alex Rodriguez, Cullen Rogers, and Eugene Riddick. (Tr. 553–554.)
According to Moncada’s testimony, from those interviews she uncovered reports of safety
violations (such as sleeping on the job), the alleged use of the “N-word” by some management
officials, and that some African-American employees conveyed their belief that if they committed
rule infractions, they would not get a second chance and they would just quit their employment 20
with Respondent, while some of the Caucasian employees who committed the same infractions
would only get written up by the Respondent. (Tr. 556–559.)
Moncada testified that some of the Local 894 members she interviewed made some very
specific complaints about their working conditions and the way they were treated by the 25
Respondent’s management personnel. (Tr. 1197–1206.) For example, Local 894 member Greg
Dougherty, who worked on the Tunnel Crew, told her about double standards for people that he
saw smoking in the tunnel. (Tr. 1197.) Moncada testified that Mark Strong informed her in his
interview that he “felt that there was a culture of fear on the jobsite,” and that he had a safety
incident shortly after he started working there that he was afraid to report, and he was subsequently 30
disciplined for failing to report it. Moncada testified that Strong also indicated that he was
interested in seeing more diversity in Respondent’s leadership.14 (Tr. 1198–1199.) Moncada also
specifically recalled that in Mia Turner’s interview she stated: “It’s all horrible” and that she was
“uncomfortable being there.” (Tr. 1199.) Turner also informed Moncada that she believed there
was prejudice at the jobsite, race issues, “clickishness and favoritism,” fear of retaliation, and she 35
did not trust Jack Harris, her supervisor. (Tr. 1199–1201.) Employee Joe Minor informed
Moncada in his interview that not many African Americans worked in the tunnel or remained in
the tunnel if they were assigned to the tunnel crew. (Tr. 462) Monty Thompson was also
interviewed and he informed Moncada about numerous concerns, including the “broom incident,”
which occurred approximately 6 months earlier. (Tr. 477.) 40

12 The record establishes that without Moncada’s knowledge, the Union officials surreptitiously
recorded the interviews of numerous Local 894 members, including Ivan Thompson.
13 The record reflects that Joe Minor was also referred to as “Sparky Joe,” and that he was an IBEW
member. (Tr. 1215.)
14 Yard Foreman Mark Strong was also called by the Respondent on its case-in-chief, where he testified
that in his interview with Moncada, he told her that there was “[a]n air of fear among the employees” that
if you made a mistake there were no second chances, and that “there was nepotism.” (Tr. 1026–1027.)
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Ivan Thompson also presented complaints to Moncada concerning his conditions of work
and his personal observations of the treatment of employees by Respondent’s supervisors and
managers. The record establishes that what was said in Moncada’s interview with Ivan Thompson,
which lasted about 30 to 45 minutes, is essentially undisputed. (Tr. 443; 744) In that interview, 5
Thompson was “very animated,” and he claimed that supervisor Jack Harris was a racist and “the
most fucked-up person in the world.”15 (Tr. 452; 744; 968–972; 1201) Moncada testified that
Thompson based those assertions on the fact that Harris had earlier referred to him as a “boy” in
front of his son, Monty, which upset him. (Tr. 443–444; 1201.) Thompson testified that within 2
weeks of starting to work on the assembly of the TBM with Jack Harris as his supervisor, Harris 10
asked Thompson’s foreman at that time, Jason Dolon: “Jason, what you got your boys doing
today?” (Tr. 745; 857–859.) Thompson told Moncada that Harris’ statement was disrespectful
towards him. (Tr. 745–746.) Like his son Monty, Ivan Thompson also told Moncada about the
“broom incident” which was an incident that occurred much earlier, when he was working on the
yard crew with Monty. As Monty informed Moncada, Ivan Thompson described how Raychel 15
Shaffer directed Monty to get her a broom, and Monty told her he would not do so and that she
should get her own broom.16 According to Ivan Thompson, Harris “got in his son’s face,” words
were exchanged, and he had to get between them to break it up. (Tr. 755–756.) That incident was
cited by Ivan Thompson as further evidence of what he believed was racial discrimination. (Tr.
752–756.)20
In addition, Ivan Thompson complained that Harris (whom he believed was a racist) did
not place him on the tunnel crew after the TBM was built, which allegedly resulted in his loss of
money because the employees in the tunnel worked more hours and were thus paid more than the
yard crew employees.17 (Tr. 445–447; 746; 991.) Thompson also testified about an incident with 25
a carpenter who he and Monty were helping build stairs early in the OCIT project. In that incident,
Ivan Thompson told Moncada that he and Monty were replaced on a Saturday for that work (which
paid overtime) by two white employees (Raychel Shaffer and Andy Snyder). (Tr. 1202–1203.)
Ivan informed Moncada that he believed that action was racist. (Tr. 749–753; 849; 1203.)
Thompson also complained to Moncada that no other Blacks, except an employee named Carl, got 30
to work in the tunnel, and he asserted that Blacks were generally under-represented in the tunnel.
(Tr. 462–463; 754–755; 974; 989–991; 1202.) Thompson also raised to Moncada several
additional incidents that he believed constituted racial discrimination, including the termination of
African-American employee Cedric (Ricky) Coleman, whom he believed was discharged before
he was allowed sufficient time to learn his job. (Tr. 780–781.) In addition to Coleman, Thompson 35
told Moncada that the Respondent terminated an un-named “African guy” because management
could not understand his “heavy accent” despite Respondent’s retention of a non-African
American employee named Contaro (who he described as a “Chinese guy”), and who was similarly
difficult to understand due to his accent. (Tr. 781–783.)
40

15 Moncada also testified that Ivan Thompson told her that Jack Harris was “the most fucked-uppest
person in the world.” (Tr. 452.)
16 Ivan Thompson described the female laborer as Jack Harris’ “little pet.” (Tr. 753.)
17 Regarding Thompson’s assertion of an alleged loss of pay, he later testified that he allegedly lost
$40,000 because Harris denied him from working in the tunnel. (Tr. 855.)
JD–09–20
11
While Thompson testified that most of his complaints in his interview concerned Jack
Harris, he also brought up safety issues and how he believed they were handled unfairly at the
jobsite. (Tr. 760; 849; 974.) In that connection, Thompson informed Moncada that when he failed
to wear gloves on the job, he was yelled at by supervision while other employees were not yelled
at for the same offense. (Tr. 757–760; 849.) In addition, Thompson also told Moncada about 5
several African-American workers who were hired to work in the Tunnel but were soon fired
thereafter, and the fact that when he was laid off there was still work left in the yard to perform.
(Tr. 780–789.)
Despite Ivan Thompson’s complaints about Jack Harris, he testified that Superintendent 10
Mike Quinn was a “good guy” who was “fair,” and someone he would go to before he would go
to anyone else. (Tr. 850.) Thompson also testified that Mike Quinn was the type of person “[he]
could work for. . .” and that he had “. . . a fair shot with [Quinn].” (Tr. 850-851) He also said of
Quinn: “No matter what is happening, he is going to be fair.” (Tr. 852) Likewise, with regard to
working for Project Manager Dave Chaskta, Ivan Thompson stated that he “. . . was a good guy 15
and you could go to him,” and “[h]e was a fair dude and he would handle any situation that you
came to him with.” (Tr. 853.) In addition, Thompson testified that during his interview with
Moncada, she seemed sincere about listening to his concerns and she gave him her business card
and told him to call her if he had anything else to tell her. (Tr. 846–847.) There is no evidence that
Thompson made any such calls to Moncada. 20
Chastka and Mike Quinn were both out of town during the interviews conducted by
Moncada August 17, 2018, and they did not participate in the interviews of the employees in any
way.18 (Tr. 921.)
25
7. The events that occurred after Moncada’s interviews on August 17, 2018 and before the
layoff of employees on August 24, 2018
On Saturday, August 18, 2018, Moncada returned to the jobsite to interview more operating
engineer employees. (Tr. 1207.) Moncada testified that she finally got to meet with Chastka30
because he just returned after being unavailable all week. (Tr. 1207)19 Moncada met in person
with Chastka on Saturday, August 18, 2018, and discussed the allegations she was investigating,
but did not discuss the details of the individual interviews. (Tr. 473; 525–-531.) Chastka likewise
testified that he did not speak with Moncada about her findings in the investigation, and she did
not show him any of her notes or tell him what was said in any of the interviews she conducted on 35
August 17, 2018. (Tr. 355.) After meeting with Chastka on August 18, 2018, Moncada left Akron,
Ohio to return to California, and Chastka returned to work at the job site on Monday, August 20,
2018. (Tr. 104; 356.)

18 David Chastka testified that he was present for a telephone discussion between Moncada and Jack
Harris, wherein Moncada wanted to get Harris’ side of the story concerning his alleged use of the “n-word”
and other “slang terms.” Chastka testified that Harris asked him to be present for that telephone call. (Tr.
923–924.)
19 Chastka left Akron, Ohio, on August 14 and he returned on August 17, 2018, at 10 p.m. EST. (Tr.
355.)
JD–09–20
12
On August 20, 2018, Moncada sent an email to Chastka20 thanking him for his help and
cooperation with the investigation of the allegations made by the Laborers Union. In an effort to
gather information about things that had come up in the interviews on August 17, 2018, she also
requested certain information and she reminded him that the information they discussed, and the
requested information to follow, were confidential. (GC Exh.10; Tr. 473–525–531.) In that email, 5
she specifically informed Chastka that she conducted 26 interviews but needed additional
information such as: timecard logs for Mark Seese’s timecards; written warnings for employees;
whether the “belt” was running when Dabney was terminated for sleeping; any previous warnings
for Dabney; whether Monty Thompson was earning an overscale rate; documentation for “Take
5” meetings; whether he had a contact number for Jason Dolon because she wanted to speak to 10
him; whether there was any written documentation of the “Broom incident;” information on the
employment and layoff of Alfred Squire; a narrative concerning Carl Johnson’s return to work
from FMLA; a narrative on Jason Quinn’s employment; the steps taken to enforce PPE policies;
video of portal time stamped with Chapman leaving work; and any paperwork on Charles Berner’s
employment who was allegedly overheard using the expression “the n*****s in the back,” and 15
who allegedly heard that expression. (Tr. 474–476; GC Exh. 10.) With regard to Moncada’s
mention of the “broom incident,” she testified that it was a “site-wide. . . dramatic event that had
happened six months [earlier]” and “everyone knew what the broom incident was.” (Tr. 476.)
Moncada acknowledged that the broom incident came up in multiple interviews, and obviously it
was mentioned in both Ivan Thompson’s and Monty Thompson’s interviews. (Tr. 474–482) She 20
testified, however, that while she may have conveyed the nature of the allegations from the
investigation and she requested information concerning the “broom incident,” she did not convey
the details of what individual employees said in their interviews to Chastka or Quinn, including,
in particular, Ivan Thompson’s statements. (Tr. 355.)
25
After Moncada returned to California, she completed her investigation. She testified that
she went through the information and validated it the best she could, and then evaluated it against
the allegations. (Tr. 1228.) She testified that the allegations that were “concrete” could not be
substantiated, and that there was an FMLA issue that she rectified. (Tr. 1228.) Moncada testified
that notwithstanding her findings, the EEO policy was re-issued to employees and outside counsel 30
was secured to perform diversity training on the jobsite for employees and supervisors. (Tr. 1229)
Chastka likewise testified that, concerning the investigation’s findings, Moncada informed him
that regardless of any findings, the Akron job needed to have people come out and reaffirm the
Respondent’s EEO policy because, whether they were doing something wrong or not, “the stir it
had created needed to be calmed down,” and they talked about the Human Resources department 35
doing diversity training in the daily jobsite “Take 5” meetings. (Tr. 357–358.) Moncada also
testified that after her investigation she sent Orr an email informing him that she was unable to
substantiate the Union’s claims, and he responded that the Union would move forward with what
they needed to do. (Tr 500.) In an email sent Wednesday, August 22, 2018, Orr mentioned to
Moncada that his Laborers spoke openly and freely and in good faith, and he hoped retaliation 40
would not become an issue. (Tr. 502–503; GC Exh. 16.)

20 Moncada also sent the email to John Criss, but she testified that she was “continuing the investigation
by eliciting additional information from Dave Chastka.” (Tr. 475.)
JD–09–20
13
8. The Respondent laid off employees as part of a reduction in force on August 24, 2018,
which included Ivan Thompson
As the primary portion of the project was coming to an end and yard crew work started to
slow down in August 2018, the reduction in force began on August 24, 2018, only a few days 5
before the TBM broke through the retrieval shaft. At the time of the layoff in August 2018, there
were six employees on the Yard Crew that consisted of Foreman Mark Seese, Mark Strong, Ivan
Thompson, Monty Thompson, Mia Turner, and Patricia Wheeler. (Tr. 1129.) The primary
responsibility of the Yard Crew at that time was to “feed the tunnel” by receiving segments and
materials, organizing the shops or Conex Boxes, and general housekeeping. (Tr. 1129.) Ivan 10
Thompson assisted in conducting inventories of the Conex Boxes, helping to organize and stock
material in those Conex boxes, and dealing with much of the delivery of materials at the site, such
as the concrete segments. (Tr. 96.) That fact that the project was just a few days away from the
TBM breaking through the retrieval shaft meant that the OCIT project would not be receiving any
additional concrete segments, and in fact, the last segment was delivered to the jobsite on August 15
22, 2018. (R. Exh. 8 and 9.)
Chastka testified that he was in a conference in California and had come back to work on
Monday, August 20, 2018. (Tr. 104.) During the beginning of that week, he contacted Union
Business Agent Floyd by phone. Floyd then went to Chastka’s office where Chastka presented a 20
list laying out the employees Chastka thought he was “going to let go of.” (Tr. 103; 1155–1156.)
Those employees were Mark Seese, Ivan Thompson, Patricia Wheeler, and Monty Thompson. (Tr.
102–103; 934) According to Chastka, Floyd reviewed the list, but he “didn’t really say anything,”
and he did not raise concerns at that time about who was chosen for the reduction in force layoff.
(Tr. 1155–1157.) Floyd acknowledged that Chastka showed him a document that indicated that 25
Patricia Wheeler, Ivan Thompson, Monty Thompson, and Mark Seese were going to be laid off.
(Tr. 643–644.) While Floyd testified that he was “shocked because there were no complaints about
[those employees],” he did acknowledge that when Chastka showed him the list of those to be laid
off, he did not say he was surprised that Ivan Thompson was being laid off, he did not ask Chastka
to change his decision to lay off Ivan Thompson, and he did not convey to Chastka that he thought 30
the layoff of Ivan Thompson or any of those employees was unfair. (Tr. 645–646; 650.)21
Mike Quinn testified that he told Ivan Thompson that he was being laid off when he handed
him his paycheck on August 24, 2018, and that he informed Thompson that they were having a
reduction in force. (Tr. 1093.) Ivan Thompson testified that he knew he was being laid off when 35
Mike Quinn gave him his paycheck on August 24, 2018, even though Quinn allegedly never said
anything to him about his layoff when he handed him the paycheck. (Tr. 733.) However,
Thompson later testified that when he was given his paycheck, he asked Quinn how many
employees were getting laid off, and Quinn simply stated, “about 4.” (Tr. 838–839.) Thereafter,
Thompson changed his testimony again, further testifying that he did not ask Quinn how many 40
people were getting laid off, but “how many people had checks that day.” (Tr. 843) In any event,

21 Business Agent Orr did, however, send Moncada an email dated August 22, 2018, in which he
mentioned “retaliation” and stated that “. . . [m]any laborers that I represent spoke openly and freely and in
good faith that there would be no retaliation…” and he hoped “that this does not become an additional issue
to deal with in the future.” (GC Exh. 16.)
JD–09–20
14
Thompson testified that he told Quinn: “Well, I guess we all have to go sometime.” (Tr. 733; 846.)
Thompson then left the jobsite.
While Ivan Thompson, Pat Wheeler, and Mark Seese were laid off that day,22 Chastka
testified that he changed his mind about laying off Monty Thompson because he found out from 5
Mike Quinn that Monty was at the hospital with his wife for what he believed was the birth of his
child.23 (Tr. 935–936.) On the day of the layoff, Chastka told one of the union business agents that
he was not going to lay Monty off at that time because “he didn’t feel right about it.” (Tr. 935-
936.) Therefore, Monty Thompson was not laid off and he continued to work. (Tr. 936.) Chastka
further testified that he subsequently realized there was in fact some work for Monty Thompson 10
to do, so he kept him on the job until October 2018, when he was laid off or let go. (Tr. 938–939.)
9. The record establishes that Chastka made the decision to lay off Ivan Thompson as part
of the reduction in force, and there is no direct evidence that Moncada’s investigation or
the statements made by Thompson in his interview were a basis for his layoff15
The evidence does not establish that Moncada’s investigation played a role in Respondent’s
decision to implement a work force reduction in the form of a layoff on August 24, 2018. (Tr.
1323.) Chastka’s testified that such a reduction was going to happen regardless of the
investigation, due to the fact that much of the work on that project was starting to wind down. (Tr. 20
1323–1324.) Chastka’s testimony was undisputed, as was his testimony that he made the ultimate
determination with respect to laying off employees, with input from Mike Quinn. (Tr. 1323.) In
particular, Chastka’s testimony that he made the decision to include Ivan Thompson in the
reduction in force, and that he did not rely in any way on Moncada’s investigation or the interviews
she conducted, was unrebutted. (Tr. 1324.) Chastka’s testimony that Moncada played no role in 25
the reduction in force and that between August 18 and 24, 2018, Moncada did not share her notes
from the investigatory interviews with him, was likewise unrebutted. Furthermore, his testimony
that she did not inform him of the specific statements made in that investigation by the employees,
including those made by Ivan Thompson, was similarly uncontradicted and unrebutted. (Tr. 356;
1161–1162; 1218; 1324.) Likewise, Moncada’s testimony that she did not share any of her 30
findings or recommendations with Chaskta at that time was also uncontradicted. (Tr. 356.) Thus,
there is no direct evidence that Moncada’s interview had anything to do with Chastka’s and
Quinn’s decision to include Ivan Thompson in the Respondent’s reduction in force layoff on
August 24, 2018.
35
While Moncada did not share her findings or recommendations from the investigation or
have anything to do with the decision to lay off Ivan Thompson, she did ask Chastka in an email
dated August 20 for information that she believed was needed for her investigation, such as time
cards, and he provided it. (Tr. 357; 370; 1159; GC Exh. 10.) While some of the information
requested concerned some allegations and complaints made by Ivan and Monty Thompson, 40

22 Kevin Truitt, a laborer from Local 894, was also laid off or discharged at that time. However, he
had approached management and requested a layoff for health reasons. (Tr. 1142.) The record reflects that
Patricia Wheeler, although part of the yard crew, had just been assigned to a new site on the project shortly
before she was let go on August 24, 2018. (Tr. 229.)
23 Monty Thompson testified that he did not specifically recall, but he believed he was not at work on
August 24, 2018, because he was at physical therapy. (Tr. 1282.) He did testify, however, that his child
was born on August 25, 2018. (Tr. 1282.)
JD–09–20
15
Chastka’s and Moncada’s testimonies that the identities of the specific employees and their
specific statements and allegations made in their interviews were never shared prior to the decision
to include Thompson in the reduction in force, were unrefuted. Furthermore, as mentioned above
in the August 20 email, while Moncada requested numerous items of information, some of which
concerned complaints raised by Ivan and Monty Thompson (such as the broom incident), Ivan 5
Thompson’s name was never raised in that email and the information requested did not identify
any of Thompson’s statements he made in his interview. (GC Exh. 10.) Likewise, in an email
from Moncada to Chastka dated August 23, 2018 (GC Exh. 12), which was one day prior to Ivan
Thompson’s layoff, she apprised Chastka of the status of her investigation, but nowhere in the
email is Ivan Thompson’s name mentioned, nor are there any concerns raised that specifically state 10
what information Ivan Thompson provided in his interview. Thus, there is no direct evidence that
Chastka’s involvement in the investigation went beyond supplying information to Moncada upon
her request.
With regard to Chastka’s decision to include Ivan Thompson in the layoff, he testified that 15
he had conversations with Mike Quinn that concerned termination or layoff decisions, and that he
did have such conversations with Quinn regarding Ivan Thompson’s layoff. (Tr. 363.) Consistent
with that assertion, Quinn acknowledged that he recommended to Chastka that Ivan Thompson be
included in the reduction-in-force layoff with Seese, Monty Thompson, and Patricia Wheeler, and
that he had not consulted with anyone regarding his recommendation. (Tr. 1081–1082; 1116.) Like 20
Chastka, Quinn testified that Moncada did not discuss any of the laborers’ interviews with him
(including Ivan Thompson’s interview), and she never shared her notes or her findings from her
investigation with him. (Tr. 1083–1084.) In fact, Quinn was on vacation during the time period
when Moncada was visiting the jobsite and conducting interviews, so he had a telephone interview
with Moncada after she left the jobsite and after he returned to work from his vacation. (Tr. 1087–25
1088.) He testified that although he could not recall the date, his interview occurred when
Moncada called him on his cell phone. (Tr. 1088.) Furthermore, Quinn testified that in his
interview, Moncada did not specifically ask him about Ivan Thompson. (Tr. 1099.)
The record shows that Mike Quinn’s call log from the telephone company established that 30
he spoke to Moncada on August 24, 2018, at 11:14 a.m. EST. Ivan Thompson’s Timecard Report
showed that his hours for August 24, 2018 were coded as “layoff,” meaning that he was laid off
that day. (Jt. Exh. 3(a) at 1860; Tr. 1303–1306.) The Respondent’s timecard status report which
showed dates, times, and changes made to timecards, revealed that the layoff decision was sent to
payroll on August 24, 2018, at 9:21 a.m., which was two hours before Moncada conducted her 35
interview and spoke to Quinn. (R. Exh. 14) This evidence was consistent with Moncada’s
testimony that she spoke to Mike Quinn on August 24, 2018, around mid-morning, and her
assertion that her notes supported her recollection because her notes ended the previous day on
August 23, 2018, at 2:08 p.m., which would have been 5:08 p.m. in Ohio, a time that is “after-
hours” Ohio time, and she testified that she would not have spoken to him that late in the evening. 40
(Tr. 1237–1238.) Thus, the documentary evidence is consistent with the assertion that Moncada
telephoned Quinn on August 24, 2018, at 11:14 a.m. EST, 2 hours after Ivan Thompson was laid
off, and that the duration of the call was 58 minutes. (R. Exh. 15.) Thus, Quinn’s testimony that
Ivan Thompson’s interview played no role in his recommendation to include Thompson in the
August 24, 2018 layoff was also supported by the record evidence. (Tr. 1084.)2445

24 Moncada testified that she was not involved in any hiring or firing decisions on the OCIT Akron
JD–09–20
16
With regard to the reason that Ivan Thompson was included in the layoff, Chastka testified
that it was not because he was unable to perform yard work, or that he had a problem with
discipline, or that he did not consider Thompson to be a “team player.”25 (Tr. 927–929.) Instead,
Chastka testified that Thompson was chosen as one of the employees to be laid off because “the 5
work was slowing down and [the Respondent] needed to let go of people.” (Tr. 927–928; 1128;
1139.) In that connection, Chastka testified that the last delivery date for segments at the jobsite
was August 22, 2018, and a substantial amount of work that the yard crew, and in particular Ivan
Thompson, played a substantial role in, was winding down. (Tr. 1132–1133; 1139; 1322.)
10
Chastka also testified without contradiction that when he had to select employees to be laid
off pursuant to a reduction in force, he looked at the technical aspects and who he thought was
going to work best together to get the work done. (Tr. 1158.) Chastka stated that he used that
approach for the August 24, 2018 layoff. In that connection, Chastka specifically testified that
Ivan Thompson was included in the layoff because he had to make a decision, going from 6 to 215
laborers, as to who would be the best fit and Ivan Thompson was not one of those two individuals.
(Tr. 1140.) Chastka testified that Ivan Thompson was not selected for layoff because he was not
a team player, but he did consider “teamwork and ability” in his decision and he determined that
Thompson was not in the top two for those criteria. (Tr. 1140.) Chastka further testified that
“sometimes [you have to choose] between two good people,” and he approved Quinn’s 20
recommendation for those who were laid off. (Tr. 1141.) Likewise, Quinn testified that he
recommended that Ivan Thompson, Mark Seese, Patricia Wheeler, and Monty Thompson be
included in the reduction in force because with the TBM being dissembled, the yard work was
declining, and they did not need as many people in the yard crew.26 (Tr. 1080–-1081; 1089.)
25
The evidence established that when the Respondent was close to having the tunnel break
through at the retrieval site, that meant that no more concrete segments used to build the tunnel
walls would be delivered at the jobsite, and, in fact, the last segment was delivered to the jobsite
on August 22, 2018. (R. Exh. 8 and 9.) After the tunnel broke through, “everybody did whatever
[was] needed done,” and “it was not a segregated activity.” (Tr. 940.) The crews were therefore 30
no longer functioning as traditional “crews,” as the employees were completing the remaining
tasks as needed. The evidence further established that the Respondent hired some laborers up to
August 9, 2018, which Chastka testified was needed because auxiliary work existed and needed to
be completed at the retrieval shaft where the TBM was going to come out of the tunnel. Therefore,
other laborers were hired to complete that work since the remaining laborers on the project at that 35
time were working in other areas on other tasks. (Tr. 98–99; GC Exh. 32 (a) and (b)) On that
matter, Chastka testified that “it was a timing issue” because “the Yard crew still had to perform

project, and she did not make any recommendations to Chastka regarding the discharge or layoff of
employees. (Tr. 1231.)
25 It is undisputed that Ivan Thompson never received any discipline from the Respondent and that his
supervisors complimented his work. Specifically, Thompson’s testimony that Mike Quinn and foreman
Mark Seese told him he was doing a good job was unrebutted. (Tr. 740.) In fact, Chastka admitted that
Ivan Thompson was a good worker, he was never disciplined, and he did not have any safety violations.
(Tr. 91; 1129.)
26 Mike Quinn testified that they changed their mind about laying off Monty Thompson because
Chastka did not think it was right to lay him off when he was in the hospital with his wife having a baby.
(Tr. 1081–1082; 1142.)
JD–09–20
17
their work while the mining was happening,” and the Respondent needed the newly hired laborers
to “prep for the mining machine to be able to come through the shaft wall, build a cradle, a surface
to be able to pull the machine out and rip it apart.” (Tr. 1157–1158.) There was thus no evidence
to rebut Chastka’s testimony that Respondent needed to bring on new hires to perform that work
because the yard crew was performing other work and both types of work had to be completed at 5
the same time. (Tr. 1158.)
10. The events that occurred after the August 24, 2018 reduction in force layoff
The record reveals that after the August 24 reduction in force, Mark Strong, Mia Turner, 10
and Monty Thompson remained on the yard crew.27 (Tr. 1157.) The Respondent “broke through”
on the tunnel on August 30, 2018, and the mining work ended the first week of September 2018.
(Tr. 338; 386.) After the TBM broke through and completed the tunneling, the machine was
disassembled and removed from the site. (Tr. 172) According to Chastka, Mark Strong continued
to work as the yard crew foreman and laborers Cullen Rogers and Derek Martin continued to work 15
in the yard. (Tr. 939–940.) Chastka testified that after the TBM completed the mining,
disassembling the machine took months and some of the employees who were tunnel workers
subsequently worked on the surface or yard pulling parts, packaging up items, and shipping them
out. (Tr. 941–943.) According to Chastka, it was not “segregated work” at that point. (Tr. 941–
942.) The remaining Laborers also assisted in packing up the project, with the Conex Boxes being 20
inventoried and supervised by an operating engineer. (Tr. 96.)
As part of the reduction in force that was instituted on August 24, 2018, the layoffs
continued for the next several months into the beginning of 2019. (Tr. 185.) The Respondent
continued to reduce its work force over the next several months from nearly 60 employees prior25
to August 2018 to approximately 11 union employees at the time of the instant hearing in this case.
(Tr. 186; R. Exh 6.) Specifically, from August 24, 2018 to November 30, 2018, in additional
reductions to the work force, employees were laid off or terminated, including several of whom
participated in Moncada’s investigation and interview.28 (Tr. 186–187.) As of the date of the
hearing, the project was nearly completed and the crew had been reduced to a substantially smaller 30
size, including superintendents, foremen, laborers, operating engineers, and oilers. (Tr. 186.) In
regard to the laborers, the Respondent had only two foremen and five laborers as of the date of the
hearing. (U Exh. 2.) In addition, the tunnel work was 100 percent checked off, and the remaining
work included managing the subcontractors that were building surface structures and performing

27 Some of the employees hired in July and August 2018 were not laid off as part of the reduction in
force, including Mark Strong, who was hired in July 2018 to perform yard work. The record shows that
Mark Strong was still working at the jobsite as of the time of the hearing in this matter. (Tr. 99.)
28 The record shows that the following employees were laid off as part of a reduction the work force
(with their respective end dates and recorded reasons if other than for a “reduction in force”): Chuck Bush
(9/5/18); Tyler Dettra (9/7/18); Bart Hanlon (9/7/18); John Chesser (9/17/18)(layoff—mutual agreement—
took another job); Derrick Martin (10/18/18); Adam Schemrich (10/18/18); Cory Friedman (10/19/18);
Cody Pratt (10/19/18); Curtis Ball (10/23/18) (layoff—voluntary—took another job); Carl Johnson
(11/2/18); Timothy Snyder (11/2/18); Greg Daugherty (11/21/18); John Oster (11/21/18); Cullen Rogers
(11/21/18); Josh Spaulding (11/21/18); Michael Trump (11/21/18); Jack Zager (11/21/18); Bill Heatley
(11/30/18); and Travis Heatley (11/30/18). (R. Exh 6) Of these employees, the following were interviewed
by Moncada as part of her investigation: Greg Daugherty, Travis Heatley, Carl Johnson, Derrick Martin,
Cullen Rogers, and Timothy Snyder. (Tr. 434; 553–554.)
JD–09–20
18
some additional change orders which the City of Akron contracted for later in the project. (Tr.
185.)
B. The Contentions of the Parties
5
The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily laying off and/or terminating Ivan Thompson for participating in
Respondent’s investigation on August 17, 2018, into the discrimination grievance filed by the
Union and “in response to voicing his concerns and criticisms to Labor Relations Manager
Catherine Moncada that Respondent’s supervisors and managers discriminated against jobsite 10
employees on the basis of their race and their union affiliation.” (GC Br. pp.1–2, 7.)
The Respondent argues that the General Counsel did not make a prima facie case of
discrimination because Thompson was not engaged in union or protected concerted activities, and
even if he was engaged in such protected activities, the Respondent’s officials who decided to lay 15
him off as part of the reduction in force did not have knowledge of those activities, and there was
no animus on the part of the Respondent. Thus, the Respondent contends that the General Counsel
did not meet his burden of proving that Thompson’s layoff was motivated by discriminatory
reasons.
20
C. Analysis
1. Catherine Moncada’s status as an agent of the Respondent within the meaning of
Section 2(13) of the Act
25
While the Respondent admitted that Project Manager David Chastka and General
Superintendent Michael Quinn were supervisors and agents within the meaning of Section 2(11)
and (13) of the Act, it denied the allegation in the Amendment to Complaint that Catherine
Moncada was an agent of the Respondent within the meaning of Section 2(13) of the Act.
30
Section 2(13) of the Act states:
In determining whether any person is acting as an ‘agent’ of another person so as
to make such other person responsible for his acts, the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not 35
be controlling.
The Board and the courts have long held that in determining whether a person acts as an
agent of another, the Board applies the common-law principles of agency. Dr. Rico Perez
Products, 353 NLRB 453, 463 (2008); NLRB v. Longshoremen (ILWU) Local 10 (Pacific40
Maritime Assn.), 283 F.2d 558, 563 (9th Cir. 1960), enfd. as modified 123 NLRB 559 (1959).
Under the common-law rules of agency, an agency relationship can be established by vesting an
agent with actual or apparent authority to act on behalf of the party. Cornell Forge Co., 339 NLRB
733 (2003). Actual authority is “created by a principal’s manifestation to an agent that, as
reasonably understood by the agent, expresses the principal’s assent that the agent takes action on 45
the principal’s behalf.” Restatement (Third) Of Agency, Section 3.01 “Apparent authority is the
power held by an agent or other actor to affect a principal’s legal relations with third parties when
JD–09–20
19
a third party reasonably believes the actor has authority to act on behalf of the principal and that
belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency, Section 2.03.
The Board has held that the burden of proving any type of agency “rests with the party
asserting that relationship.” Millard Processing Services, 304 NLRB 770, 771 (1991), enfd. 2 F.3d 5
258 (8th Cir. 1993), cert. denied 510 U.S. 1092 (1994); See Pan-Oston Co., 336 NLRB 305, 306
(2001); see also Sunset Line & Twine Co., 79 NLRB 1487, 1508 (1948).
Catherine Moncada testified that she currently holds the title of Director or Labor Relations
for Granite Construction, and that in August 2018, she held the position of Labor Relations 10
Manager for Granite Construction. As the labor relations manager, she also represented Kenny
Construction, a wholly owned subsidiary of Granite Construction, in its labor relations matters.
(Tr. 422; 951–952.) She also represented the Kenny/Obayashi Joint Venture in its labor relations
matters, which included its Project Labor Agreement and collective-bargaining agreement. (Tr.
422–423; 952.) As Labor Relations Manager, her duties included implementation of company-15
wide labor strategy, the negotiation of collective-bargaining agreements, grievances and dispute
resolution, contract management, and labor compliance. (Tr. 1185.) Her job description for the
Labor Relations Manager position states that she was “responsible for managing the day to day
activities of the Labor Relations Department to ensure efficiency and attainment of operating
goals.” (GC Exh. 26; Tr. 951.)29 20
Moncada testified that she traveled to the Akron project site to handle the grievance filed
by the Union, and she was acting on the authority of the Respondent while she was there to address
those concerns. (Tr. 431.) The investigation she was conducting was on behalf of Kenny
Construction and the joint venture, and it was part of her duties to handle grievances for Kenny 25
Construction. (Tr. 1243–1244.) Moncada also testified that she was responsible for implementing
policy with respect to human resource issues, wages, and other terms and conditions of
employment for Kenny Construction and the joint venture. (Tr. 1245.)
Chastka testified that when Moncada conducted interviews to determine if the Union’s 30
allegations had merit, she was acting on behalf of the Respondent. (Tr. 129.) Chastka’s testimony
was corroborated by Moncada, who testified that with regard to the relationship between Granite
Construction, where she was employed, and the Respondent’s joint venture, she acted on behalf
of those joint venture entities when there were labor disputes. (Tr. 489–490.) With regard to her
agency status, Union Organizer Bill Orr testified that Moncada informed him that she served as 35
representative of the Respondent with respect to the latter levels of the grievance process. (Tr.
546–547.) Moncada also acknowledged that in Ivan Thompson’s interview with her, she informed
him that she was there on behalf of the corporate office to interview him and to discuss the
allegations. (Tr. 518–519.)
40

29 The job description also lists her essential job accountabilities as, inter alia, “assisting with
evaluation, development, and implementation of department policies, practices, and procedures to ensure
compliance with terms of labor contract provisions, including wages, hours, and working conditions and
applicable law in attainment of operating goals;” interpreting collective-bargaining agreements,
administering grievance procedures, ensuring compliance with collective-bargaining agreements; and
monitoring and analyzing costs, overseeing preparation of budgets and coordinating activities of other
departments to ensure efficiency and economy. (GC Exh. 26.)
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20
I find that the Respondent conferred actual authority upon Moncada by identifying her as
its representative in labor relations matters and, in particular, the investigation and processing of
the Union’s grievance, which became more about a “global problem” of disparate treatment and a
“[p]roblem of overall management and a feeling of our management discriminating based on local
affiliation and race.” (Tr. 351–354; 962–963.) As mentioned above, both Moncada and Chastka 5
acknowledged that Moncada acted on behalf of the Respondent regarding labor disputes and she
was responsible for its labor relations matters, including the processing of the PLA and the
grievances filed by Local 894. Respondent clearly vested Moncada, as its agent in its labor
relations matters in in processing of grievances, with actual authority to act on the Respondent’s
behalf and to bind it to her determinations on those matters. Moncada’s actions were also 10
consistent with her possession of such actual authority as she held herself out to the Union
representatives and employees such as Ivan Thompson as an agent of the Respondent who
possessed actual authority.
Thus, based on the above evidence, I find the record establishes that Moncada was vested 15
with actual authority on the Respondent’s behalf, and I find that she was an agent of the
Respondent within the meaning of Section 2(13) of the Act.
2. The Respondent’s layoff and/or termination of Ivan Thompson on August 24, 2018
20
a. The law
Section 7, the cornerstone of the Act, provides that employees “shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the purpose 25
of collective bargaining or other mutual aid or protection. . . .” To ensure that employees are free
to exercise their Section 7 rights without fear of reprisal, Section 8(a)(3) of the Act makes it an
unfair labor practice for an employer to discriminate against employees “in regard to hire or tenure
of employment or any term or condition of employment to encourage or discourage membership
in any labor organization.” In addition, Section 8(a)(1) of the Act makes it an unfair labor practice 30
for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7.” Thus, the Act prohibits employers from discriminating against
employees by discharging them on the basis of their union activities and/or for exercising their
organization and collective-bargaining rights, including their right to engage in concerted activities
for the purpose of mutual aid and protection. See MCPC Inc. v. NLRB, 813 F.3d 475, 479 (3d Cir. 35
2016).
In analyzing this case, I note that where employers argue that they discharged employees
for reasons unrelated to their protected activity, the Board and the courts rely on the so-called
“mixed motive” or “dual motive” discharge test set forth by the Board in Wright Line, 251 NLRB 40
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983); See also MCPC Inc.
v. NLRB, 813 F.3d 475, 490 (3d Cir. 2016). In Wright Line, the Board announced the following
causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) of
the Act turning on employer motivation. Under Wright Line, the General Counsel bears an initial 45
burden of establishing that an employee’s union or other protected concerted activity was a
motivating factor in the employer’s adverse employment action at issue. Id. at 1089. The General
JD–09–20
21
Counsel satisfies the initial burden under Wright Line by showing that: (1) the employee engaged
in union and/or protected concerted activity; (2) the employer had knowledge of that activity; and
(3) there was animus against that activity on the part of the employer. Tschiggfrie Properties, Ltd.,
368 NLRB No. 120, slip op. at 1 fn. 3 (2019); Strongsteel of Alabama, LLC, 367 NLRB No. 90,
slip op. at 1 (2019); Donaldson Bros. Ready Mix, 341 NLRB 958, 961 (2004); L. B. & B. 5
Associates, Inc. d/b/a North Fork Service Joint Ventures, 346 NLRB 1025, 1026 (2006);
Willamette Industries, 341 NLRB 560, 562 (2004); See also DHL Express (USA), Inc., 360 NLRB
730 (2014).
The Board’s Wright Line test is, and has always been, inherently a causation test. 10
Tschiggfrie Properties, Ltd., supra at slip op. 8. In that connection, the Board, in clarifying the
General Counsel’s initial burden under Wright Line, and in particular its requirement of evidence
of animus, has held that circumstantial evidence of any animus or hostility toward union or
protected concerted activity is not enough to satisfy that burden. Tschiggfrie Properties, Ltd., supra
slip op. at 8. To meet that initial burden, the evidence of animus must support a causal relationship 15
between the employee’s union or protected concerted activity and the employer’s adverse
employment action. Id. slip op. at 1.
It is well established that proof of animus or discriminatory motivation can be based on
direct evidence or, under certain circumstances, it may be inferred from circumstantial evidence 20
based on the record as a whole. See Electrolux Home Products, 368 NLRB No. 34, slip op. at 3
(2019); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003); See also Fluor Daniel, Inc., 304
NLRB 970, 970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992). As support for an inference of
unlawful motivation, the Board may rely on, among other factors, disparate treatment of the
affected employee and the timing of the discipline relative to the employee’s protected activity. 25
See Embassy Vacation Resorts, supra at 848. In addition, the Board may infer animus against
protected activities from pretextual reasons given for the adverse employment action. DHL
Express, supra, slip op. at 1 and fn.1. When an employer’s stated reasons for its decision are found
to be pretextual—that is, either false or not in fact relied upon—“discriminatory motive may be
inferred, but such an inference is not compelled.” Electrolux Home Products, supra, slip op. at 3. 30
“If [a trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that
there is another motive. More than that, he can infer that the motive is one that the employer
desires to conceal—an unlawful motive—at least where…the surrounding facts tend to reinforce
that inference.” Id.; See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).30
35
The Board, however, has held that some kinds of circumstantial evidence are more likely
than others to satisfy the General Counsel’s initial burden. In that connection, the Board stated:
For example, evidence that an employer has stated it will fire anyone who engages
in union activities, while undoubtedly ‘general” in that it is not tied to any particular 40
employee, may nevertheless be sufficient, under the circumstances of a particular
case, to give rise to a reasonable inference that a causal relationship exists between
the employee’s protected activity and the employer’s adverse action. In contract,
other types of circumstantial evidence—for example, an isolated, one-on-one threat

30 “The absence of any legitimate basis for action, of course, may form part of the proof of the General
Counsel’s case.” Wright Line, 251 NLRB at 1088 fn. 12 (citing Shattuck Denn Mining, supra).
JD–09–20
22
or interrogation directed at someone other than the alleged discriminate and
involving someone else’s protected activity—may not be sufficient to give rise to
such an inference. Tschiggfrie Properties, Ltd., supra at 8.
Thus, the Board has held that the General Counsel does not invariably sustain his burden by 5
producing—in addition to evidence of the employee’s protected activity and the employer’s
knowledge thereof—any evidence of the employer’s animus or hostility toward union or other
protected activity. The evidence must instead be sufficient to establish that a causal relationship
exists between the employee’s protected activity and the employer’s adverse action against the
employee. Id. 10
Once the General Counsel makes such a prima facie showing sufficient to support the
inference that protected conduct was a “motivating factor” in the employer’s adverse action, the
burden then shifts to the employer to establish by a preponderance of the evidence that the same
action would have taken place even in the absence of the employee’s union or other protected 15
concerted activity. Tschiggfrie Properties, Ltd., supra, slip op. at 1, fn. 3; Strongsteel of Alabama,
supra, slip op. at 1; Lucky Cab Co., 360 NLRB 271, 276 (2014); Austal USA, LLC, 356 NLRB
363, 364 (2010); See also Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). This
burden may not be satisfied by an employer’s proffered reasons that are found to be pretextual,
(i.e., false reasons or reasons not in fact relied upon for the adverse employment action). In 20
addition, it is apparent that the employer does not sustain its burden by simply showing that a
legitimate reason for the action existed. As the Board stated in Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984):
We have held that the burden shifted to an employer under Wright Line is one of 25
persuasion, an affirmative defense in which the employer must demonstrate by a
preponderance of the evidence that the same action would have taken place even in
the absence of the protected conduct. If an employer fails to satisfy its burden of
persuasion, the General Counsel’s prima facie case stands unrefuted and a violation
of the Act may be found. See Wright Line, 251 NLRB at 1088 fn. 11; Bronco Wine 30
Co., 256 NLRB 53 (1981); Rikal West, Inc., 266 NLRB 551 (1983). Cf. Magnesium
Casting Co., 259 NLRB 419 (1981).
Therefore, in rebutting the General Counsel’s prima facie showing that the protected
conduct was a “motivating factor” in the employer’s decision, the employer cannot simply present 35
a legitimate reason for its action but must persuade, by a preponderance of the evidence, that the
same action would have taken place even in the absence of the protected conduct.
b. The General Counsel’s prima facie case of discrimination
40
(1) The requirement that Ivan Thompson was engaged in union and concerted
activity for the purpose of mutual aid or protection
The evidence in this case establishes that Ivan Thompson engaged in union activities when
he made statements about local union members being discriminated based on their race and local 45
union affiliation in the grievance investigation interview with Moncada on August 17, 2018. The
grievance that Moncada had originally come to the jobsite to investigate and process for the
JD–09–20
23
Respondent quickly morphed into something larger than the two employees who had the grievance
filed on their behalf. In the act of investigating and processing the grievance, and after discussing
the grievance with the union officials, the Respondent became aware that the Union’s grievance
was alleging discrimination based on race and local union affiliation. The grievance, as Chastka
described, became more about a “global problem” of disparate treatment and more of a “[p]roblem 5
of overall management and a feeling of our management discriminating based on local affiliation
and race.” (Tr. 351–354; 962–963.) In Thompson’s interview, in which Local 894 representatives
Orr and Floyd were present, he provided Moncada with his observations and assertions of conduct
by Respondent’s managers that he believed constituted racial discrimination, and thus he clearly
provided information that was related to and concerned the nature of the Union’s grievance 10
alleging disparate treatment and discrimination based on local union affiliation and race.
Besides constituting union activity, Thompson was also engaged in protected concerted
activity. It is well established that an employee’s conduct must be both “concerted” and engaged
in for the purpose of “mutual aid or protection” for it to be protected under Section 7 of the Act. 15
Eastex Inc. v. NLRB, 437 U.S. 556, 565 (1978). The Supreme Court held that Congress did not
intend to limit the protection of Section 7 of the Act to situations “in which an employee’s activity
and that of his fellow employees combine with one another in any particular way.” NLRB v. City
Disposal Systems, 465 U.S. 822, 835 (1984). The Court also held that “mutual aid or protection”
concerns “the goal of concerted activity; chiefly, whether the employee or employees involved are 20
seeking to ‘improve terms and conditions of employment or otherwise improve their lot as
employees.’” Eastex, Inc., supra at 565. The concertedness and “mutual aid or protection”
elements under Section 7 are therefore analyzed under an objective standard, and the subjective
motive for the employee’s action is not relevant to whether that action was concerted. “Employees
may act in a concerted fashion for a variety of reasons—some altruistic, some selfish—but the 25
standard under the Act is an objective one.” Circle K Corp., 305 NLRB 932, 933 (1991), enfd.
mem. 989 F.2d 498 (6th Cir. 1993).
The Board defined concerted activity in Meyers Industries (Meyers I), 268 NLRB 493
(1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 30
948 (1985), as activity “engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself.” The Board clarified that definition of concerted activity
in Meyers II, 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988), to include cases “where individual employees seek to initiate
or to induce or to prepare for group action, as well as individual employees bringing truly group 35
complaints to the attention of management.” Id. at 887.
In this case, Ivan Thompson and the other employees interviewed by Moncada, did not
voluntarily seek her out to voice their personal complaints. Instead, they were summoned by the
Respondent to provide information and convey their views concerning a grievance that morphed 40
into claims of disparate treatment regarding all employees’ working condition, in particular,
disparate treatment or discrimination against employees based on race and their local union
affiliation. In fact, Moncada, whose intent was to interview all of the Local 894 members who
were on the jobsite that day, testified that in questioning those individuals, she was trying to find
out whether allegations of “rampant discrimination” on the jobsite had merit, and she asked about 45
the treatment of people and things people may have heard, witnessed, or observed. (Tr. 1193–
1195.) She also testified that she inquired about “double standards in place” between Local 894
JD–09–20
24
members and non-members, supervisors and employees, African-American employees and
Caucasian employees, and African-American employees and Caucasian supervisors. (Tr. 1193–
1194.) Moncada also informed those being interviewed that they were there to discuss “double
standards” or “racial issues.” (Tr. 442.)
5
By the very nature of the construct of the Respondent’s grievance interviews, it is not
surprising that Thompson’s participation in the interview included some personal complaints of
how he perceived he was treated by management. However, despite those personal complaints,
his statements to Moncada also included his observations of Respondent’s practices at the jobsite
that affected all employees. His observations included identifying supervisors and managers 10
whom he believed engaged in racially discriminatory conduct, including Superintendent Mike
Quinn and Foreman Jack Harris. (Tr. 725–752.) Thompson’s statements to Moncada concerned
racial discrimination not just involving himself, but for all African-American employees at the
jobsite. As such he conveyed his belief that blacks were generally precluded from working in the
tunnel where the pay was higher than in the yard. His complaints to Moncada also included, inter 15
alia, assertions of disparate treatment for employees regarding the use of safety equipment and
infractions. It is clear from his comments to Moncada that he was attempting to bring to
management’s attention complaints regarding disparate treatment and racial discrimination that
affected the working conditions of all employees.
20
Even though Thompson’s comments to Moncada were expressed individually, the Board
has found that such “ostensibly individual activity may in fact be concerted activity if it directly
involves the furtherance of rights which inure to the benefits of fellow employees.” Anco
Insulations, Inc., 247 NLRB 612, 613 (1980); see also Alleluia Cushion Co., 221 NLRB 999, 1000
(1975). I find that Thompson’s comments to Moncada were for the purpose of protecting and 25
furthering employees’ rights, and therefore under established Board law he was engaged in
concerted activity. See Chromalloy Gas Turbine Corp., 331 NLRB 858, 863 (2000), enfd. 262
F.3d 184 (2d Cir. 2001)(concerted activity found where the discriminatee did not raise “purely
personal concerns” but rather “espoused the cause of the hourly shop employees” and sought to
have the new break policy applied “fair[ly] to all employees.”).30
Moreover, it is clear from the record that Moncada was conducting her employee
interviews as part of her investigation to determine whether the complaints of “rampant
discrimination” had merit, and if they did, it is plausible that Respondent’s intent was to take some
sort of action to remedy or resolve those issues if they existed. The evidence does not establish, 35
nor is it plausible, that the Respondent was conducting its interviews to simply gather the
complaints of its employees and then take no action if in fact such discrimination and double
standards were discovered. The protected statements made by Thompson, if in fact they were to
be believed by the Respondent, were such that they looked forward to action by the Respondent.
As such, Thompson’s protected statements constituted more than mere griping. See Alstate 40
Maintenance, 367 NLRB No. 68, slip op. at 4 (2019)(where the Board has found that under Meyers
II, “[w]here a statement looks forward to no action at all, it is more than likely mere griping.”).
I further find that Thompson’s conduct was for the purpose of mutual aid or protection. It
is well established that the “mutual aid or protection” clause encompasses “much legitimate 45
activity [by employees] that could improve their lot as employees.” Eastex, 437 U.S. at 567. In
this case, Thompson’s participation in the interview with Moncada concerned complaints, not just
JD–09–20
25
about his personal situation, but also about the treatment of employees in general, and such was in
furtherance of the mutual aid or protection of other employees’ rights to work in a safe and
harassment free environment. Thompson’s actions were an attempt to protect the rights of those
employees, and therefore were actions related to improving the employees’ conditions of
employment. See Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168, 172 at fn. 3 (3d Cir. 2004). 5
Moreover, Board precedent firmly establishes that employee complaints about supervisors’
treatment of employees is directly related to working conditions and constitutes protected
concerted activity. Calvin D. Johnson Nursing Home, 261 NLRB 289 fn. 2 (1982), enfd. 753 F.2d
1078 (7th Cir. 1985); Astro Tool & Die Corp., 320 NLRB 1157, 1162 (1996). In fact, the 10
“[c]oncerted efforts by employees to alleviate racially discriminatory employment conditions have
long been held protected activity. . . .” Vought Corp., 273 NLRB 1290, 1294 (1984); See also
Honeywell, Inc., 250 NLRB 160, 161 (1980), enfd. 659 F.2d 1069 (3d Cir. 1981) (where the Board
found that an employee’s “naming supervisors and others as engaging in racial discrimination”
constituted protected activity). In addition, in Honeywell, Inc., supra, the Board also found that 15
the employee’s “criticism of Respondent’s promotion policy as being racially discriminatory
constitute[d] concerted activity protected under Sec. 7 [of the Act].” Id. at 161, fn. 6; see, e.g.,
General Teamsters Local 528 (Theatres Service Co.), 237 NLRB 258 (1978).
(2) The requirement that the Respondent had knowledge of Thompson’s union 20
and protected concerted activities
In this case, the General Counsel has alleged that Ivan Thompson’s statements made in his
interview with Moncada on August 17, 2018 constituted his protected activity. However, the
evidence establishes that Moncada, the Respondent’s agent who had knowledge of Thompson’s 25
protected activity, played no role in the decision to lay him off. Conversely, the evidence
establishes that Chastka, and to a certain extent Mike Quinn who made the recommendation to
include Thompson in the reduction in force, were responsible for making the decision to lay off
Thompson. There is no direct evidence, however, that the decisionmakers who selected Thompson
for layoff had any knowledge of his protected statements to Moncada. In fact, it is undisputed that 30
both Chastka and Quinn were not present at Thompson’s interview, and they were not even in
town at the time the protected statements were made in his interview. Thus, the question pertaining
to this requirement of the General Counsel’s prima facie case is whether Moncada’s knowledge of
Thompson’s protected statements can be imputed to the decisionmakers or whether the evidence
is sufficient to support a “reasonable inference” that Moncada communicated Thompson’s 35
protected statements to the decisionmakers prior to the decision to lay him off.
While it is well established that the Board will impute a manager’s or supervisor’s
knowledge of an employee’s protected concerted or union activities to the decisionmaker, it will
not impute such knowledge if the employer affirmatively establishes a basis for negating such an 40
imputation. G4 Secure Solutions (USA) Inc., 364 NLRB No. 92, slip op. at 3 (2016); See e.g. Vision
of Elk River, Inc., 359 NLRB 69, 72 (2012), reaffirmed and incorporated by reference in 361
NLRB 1397 (2014).
In this case, both Chastka and Quinn specifically testified without contradiction that they 45
did not have knowledge of Thompson’s protected statements made in his interview with Moncada.
Chastka testified that Moncada never told him that Thompson interviewed with her; she never
JD–09–20
26
conveyed Thompson’s statements, protected or otherwise, to him; and she did not share her notes
from Thompson’s interview with him. Quinn also testified that although he knew that employees
(including Ivan Thompson) were interviewed by Moncada, he was not present for the interviews,
Moncada never conveyed the identity of the employees interviewed or the statements they made,
he did not discuss those interviews with any of the laborers on the project, and he did not discuss 5
the interviews with Chastka. Quinn also testified that his involvement with Moncada’s
investigation consisted only of being interviewed by her on the day Thompson was laid off, and
that he specifically recalled that Moncada never asked him about or discussed Ivan Thompson in
his telephone interview. (Tr. 1099.)
10
Moncada corroborated the testimonies of Chastka and Quinn by testifying, without
contradiction, that she was never involved in the decision to lay off Thompson. She also testified
that she never conveyed to either Chastka or Quinn that Thompson was one of the employees
interviewed, she never conveyed to them the specific comments or statements made by Thompson,
and she never shared with them her notes setting forth the details of Thompson’s statements. While 15
Moncada testified that she requested information from Chastka in order to fully investigate the
allegations made by the employees interviewed that day, that was the extent of his involvement
with her investigation. Quinn’s only involvement with the investigation consisted of his being
interviewed by Moncada on August 24, 2018, which was the same day that Thompson was laid
off. Consistent with Quinn’s testimony, Moncada testified that she never brought up or discussed 20
Ivan Thompson in Quinn’s telephone interview.
Even if the evidence established that Thompson’s name was mentioned in his telephone
interview with Moncada, that would be immaterial because there is absolutely no evidence to
suggest or establish that Thompson’s protected statements were in any way conveyed to Quinn. 25
In addition, the General Counsel’s assertion that Quinn was aware of Thompson’s protected
statements to Moncada is belied by the fact that Quinn’s interview occurred after the decision to
include Thompson in the layoff. As mentioned above, Quinn’s interview with Moncada was by
telephone, after she had left the jobsite and returned to California, and after Quinn returned from
being on vacation during the week that Moncada was at the jobsite. Moncada testified that she 30
spoke to Quinn by phone around mid-morning on August 24, and she stated that her notes
supported her recollection because the notes ended the previous day on August 23, 2018, at 2:08
p.m., which would have been 5:08 p.m. in Ohio, which is after-hours Ohio time and she would not
have spoken to Quinn that late in the evening. The documentary evidence also confirms that
Moncada called Quinn on August 24, 2018, at 11:14 a.m. EST, and that the call was 58 minutes in 35
duration. (R. Exh. 15.) With regard to the timing of the decision to layoff Thompson, the
Respondent’s timecard detail report shows that Thompson’s hours worked for August 24, 2018,
were not notated with the work he was scheduled to perform, but instead it was coded as “layoff,”
establishing that he was to be laid off that day. (Tr. 1301–1307; Jt. Exh. 3(a).). That marking was
consistent with the Respondent’s timecard status report, which shows the dates, times, and changes 40
made to the timecards, and which shows that the August 24, 2018 entry establishes that the layoff
was sent to payroll on August 24, 2018, at 9:21 a.m., which was approximately 2 hours before
Moncada spoke to Quinn in his interview. Therefore, it is implausible that Quinn would have
known of Thompson’s protected statements prior to the decision to lay him off.
45
Thus, there is no direct evidence that the decisionmakers were aware of Thompson’s
protected statements prior to deciding to include him in the reduction in force layoff. Despite the
JD–09–20
27
fact that the testimonies of Chastka, Quinn, and Moncada were unrebutted and there is no direct
evidence that Thompson’s protected interview statements were conveyed to the individuals who
decided to lay him off, the General Counsel nevertheless argues that a “reasonable inference”
should be drawn that Moncada shared the “investigation findings, including the incidents raised
and the participants in the investigation directly with Chastka.” (GC Br. 13–14.) The General 5
Counsel specifically bases his assertion on the fact that: (1) Moncada, in an August 23 email to
Orr, stated that “Dave [Chastka] and I have been working together investigating the complaints
made by its union members;”31 (2) Moncada, in that same August 23 email identified two
employees (Wilks and Seese) as individuals who made complaints, which he alleges contradicts
Chaska’s testimony that Moncada did not disclose the identity of employees who were 10
interviewed;32 and (3) Moncada, in conducting her investigation, in an August 20 email requested
information from Chastka pertaining to issues raised by the interviews, one of which concerned
the “broom incident,” which Ivan Thompson, among others, spoke about in his interview.33
I find no merit in the General Counsel’s argument that the evidence cited above supports a 15
sufficient basis for an inference that Respondent’s decisionmakers possessed knowledge of
Thompson’s protected statements. In making this determination, I initially note that the
testimonies of Moncada, Chastka, and Quinn, besides being unrebutted, were very credible.
Credibility determinations may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, the weight of the evidence, established or admitted facts, 20
reasonable inferences that may be drawn from the record as a whole, and the inherent probabilities
of the allegations. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001)(citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all or nothing
propositions. Indeed, nothing is more common than for a judge to believe some, but not all, of the 25
testimony of a witness. Daikichi Sushi, 335 NLRB at 622; Jerry Ryce Builders, 352 NLRB 1262
fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on
other grounds 340 U.S. 474 (1951).
The General Counsel, in asserting that Moncada and Chastka presented conflicting 30
testimonies, asserts that they should not be believed. I find no merit to that assertion. I studied
the demeanor of the witnesses very carefully at trial. My observation during the trial was that
Moncada, Chastka, and Quinn all appeared sincere, honest, and unbiased in their demeanor. Their
testimonies were also consistent, convincing, and straightforward. Moncada, in particular, struck
me as someone who took the Union’s complaints very seriously and seemed sincere in her 35
testimony that she wanted to find out if there was merit to their allegations of discrimination and
double standards. She likewise appeared honest in her testimony that she did not reveal Ivan
Thompson’s protected statements to the decisionmakers, or that she showed them her notes from
the interviews. In addition, Chastka struck me as someone who had very good recall of the facts
of this case, and someone who was very honest in his testimony that, even though he assisted 40
Moncada in the investigation by providing her the information she needed, he was never provided
the protected statements that Thompson made in his interview and he never took into consideration
Thompson’s statements when deciding to include him in the layoff.

31 (GC Exh. 7)
32 (GC Exh. 10)
33 Id.
JD–09–20
28
In addition to finding the Respondent’s decisionmakers credible, I find no merit in the
General Counsel’s argument that an inference of knowledge should be drawn. With regard to the
General Counsel’s first argument that Moncada told the Union officials that Chastka was working
with her to investigate the complaints, I note that Chastka never disputed working with Moncada 5
on her investigation. In fact, the record establishes that Chastka had, in fact, worked with Moncada
on the investigation to the extent that he provided her with information and documents that she
requested to adequately investigate the issues raised in the interviews. The record, however, is
devoid of any evidence that he did anything more than supply the information requested. In
addition, the fact that he supplied her with the information she requested and that she informed10
Orr that she was working with Chastka on the investigation does not mean that Moncada shared
with him that Ivan Thompson was one of the individuals who brought those concerns to her
attention, nor does it mean that she shared the details or specific protected statements that
Thompson made in his interview.
15
I also find the General Counsel’s second argument that Moncada identified two employees
who made complaints, and that such testimony somehow conflicted with or contradicted Chaska’s
testimony, is likewise insufficient to warrant drawing an inference. In fact, that assertion is
immaterial to the issues in this case. The only relevant evidence would have been whether she
disclosed Thompson’s identity and the specific allegations and statements that he made to her 20
which constituted his union and protected concerted activity.34 The fact that Moncada may have
identified two other employees does not diminish Chastka’s credible testimony that Moncada
never talked to him about Thompson, nor did she ever identify him or provide his protected
statements. Moreover, with regard to the General Counsel’s third argument, I find that Moncada’s
request for information from Chastka pertaining to the “broom incident,” is similarly insufficient 25
to warrant drawing any inferences because she never identified Ivan Thompson as the person who
brought the broom incident to her attention, the broom incident was well known on the jobsite by
many employees and managers, and, most importantly, the broom incident was specifically
brought up by others in their interviews, including Monty Thompson.
30
Thus, I find that the evidence does not establish that the decisionmakers knew of the
specific statements Thompson made in is interview which constituted his protected concerted and
union activities. The Board has held that “[i]n an 8(a)(1) discharge or layoff case, the issue is
whether the decisionmaker knew of the concerted protected activity, not whether the
decisionmaker should or reasonably could have known.” Reynolds Electric, Inc., 342 NLRB 156, 35
157 (2004). The evidence in the instant case is too speculative and it is insufficient to warrant a

34 In finding immaterial the question whether Chastka and Quinn knew that Ivan Thompson was one
of the employees interviewed by Moncada, I note that based on Moncada’s stated intent to interview all
Local 894 members that were at work on August 17, 2018, it is no surprise that Chastka and Quinn would
have believed that Ivan Thompson was one of those members, and in fact, Quinn testified that he was aware
that Thompson was interviewed by Moncada. (Tr. 1084.) The fact that they were aware or should have
been aware that Thompson was interviewed (along with all the other Local 894 members that day) does not
equate to an inference that Moncada disclosed to them Thompson’s specific protected statements or
comments. I likewise find no merit to the assertion that Moncada’s identification of two employees who
made complaints somehow contradicted Chaska’s testimony or that it lessened his credibility in any way.
As explained above, Chastka was a very credible witness, and I find that such a statement, if contradictory,
was simply an honest misstatement or oversight by him.
JD–09–20
29
reasonable inference that the decisionmakers had knowledge of Thompson’s protected concerted
and union activities. Likewise, I find that the Respondent has affirmatively established a basis for
negating any imputation of knowledge from Moncada to Chastka or Quinn, the individuals who
made the decision to include Thompson in the reduction in force layoff. The evidence is therefore
insufficient to find that the knowledge element of the General Counsel’s prima facie case has been 5
established here.
(3) The requirement of the Respondent’s animus against Thompson’s
protected activity
10
As mentioned above, under Wright Line, the General Counsel must initially show that
Thompson’s protected concerted and union activities were a substantial or motivating factor in
Respondent’s decision to lay him off or discharge him. Tschiggfrie Properties, LTD, 368 NLRB
No. 120, slip op. at 3 (2019), citing Tschiggfrie Properties, Ltd. v. NLRB, 896 F.3d 880, 885 (8th
Cir. 2018). “Motivation is a question of fact that may be inferred from both direct and 15
circumstantial evidence.” Tschiggfrie Properties, LTD, supra, slip op. at 3, citing NLRB v. RELCO
Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013)(internal quotations omitted); See Webco
Industries, 334 NLRB 608, 608 fn. 3 (2001)(Under Wright Line, the General Counsel “must
establish that the employee’s protected conduct was, in fact, a motivating factor in the
Respondent’s decision); See, e.g., Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). To meet 20
the General Counsel’s initial burden, “the evidence of animus must support finding that a causal
relationship exists between the employee’s protected activity and the employer’s adverse action
against the employee.” Tschiggfrie Properties, LTD, supra, slip op. at 1. Thus, the General
Counsel must establish “a connection or nexus” between the Respondent’s animus towards
Thompson’s protected statements and his layoff/discharge. Id. slip op. at 3. 25
As mentioned above, “[p]roof of discriminatory motivation can be based on direct evidence
or can be inferred from circumstantial evidence based on the record as a whole.” Id. slip op. at 8;
Embassy Vacation Resorts, supra at 848. Since Wright Line is inherently a causation test, the
Board has held that “the General Counsel does not invariably sustain his burden by producing—30
in addition to evidence of the employee’s protected activity and the employer’s knowledge
thereof—any evidence of the employer’s animus or hostility toward union or other protected
activity.” Id. slip op. at 8. The evidence instead must be sufficient to establish that a causal
relationship exists between the protected activity of that employee and the employer’s adverse
action against that employee. Id.35
In this case, while the General Counsel has provided evidence that Thompson was engaged
in protected activities, the evidence does not establish that Respondent’s decisionmakers had
knowledge of those protected activities, and General Counsel has therefore failed to sustain his
burden of proving a prima facie case of discrimination. However, even assuming arguendo that 40
the General Counsel did sustain his burden of proving knowledge, and the analysis turned to the
question of whether the General Counsel has established that the adverse employment action was
unlawfully motivated, I find that the evidence is insufficient to establish discriminatory motive or
animus by the Respondent.
45
In this case, there is no direct evidence of any animus by the Respondent towards
Thompson’s participation in its investigation of the Union’s allegations of discrimination and
JD–09–20
30
double standards towards employees based on their race or union affiliation, nor is there direct
evidence of animus towards Thompson’s statements made in the interview with Moncada that
constituted his union and protected concerted activities. Nevertheless, the General Counsel
submits that circumstantial evidence infers discriminatory motive or animus demonstrated by the
fact that: (1) the timing of Thompson’s layoff was in close proximity to his protected activities; 5
(2) the Respondent allegedly departed from past practice in the way it conducted the August 24,
2018 layoffs; and (3) the Respondent’s proffered explanation for the adverse action was allegedly
pretext; (GC Br. p. 14–15.)
(i) The alleged suspect timing of Thompson’s layoff10
It is well-established that the timing of an employer’s adverse action could constitute
circumstantial evidence of unlawful motivation. Success Village Apartments, 348 NLRB 579, 579
fn. 5 (2006). In this case, the General Counsel argues that Thompson’s layoff 7 days after his
interview with Respondent’s grievance investigation supports an inference that his layoff was 15
discriminatorily motivated. (GC Br. p. 15–16.) While the Respondent’s implementation of its
reduction in force just one week after Thompson’s protected activities could weigh in favor of an
inference of unlawful motivation, the evidence does not support that such timing was in any way
suspect. As set forth in the discussion below, regardless of the close timing, the evidence does not
establish a causal relationship between Thompson’s protected conduct and his inclusion in the 20
reduction in force.
(ii) The alleged departure from past practice
The Board has held that an employer’s deviation from past practice may be considered 25
evidence of animus. Allstate Power Vac, Inc., 354 NLRB 980 (2009). The General Counsel alleges
that evidence of animus can be found in Thompson’s layoff on August 24, 2018, because the
Respondent “failed to give the Union or Thompson any written notification of an impending
layoff,” and by doing so it deviated from its earlier layoff of employees in December 2017, when
it provided the Union with prior written notice of those to be laid off and their subsequent recall 30
dates. (GC Br. 16.)
This argument is not supported by the record and it fails for several reasons. Initially, it is
important to note that the layoff in December 2017, where Thompson was one of the employees
laid off for approximately 3 weeks, is distinguishable from the reduction in force layoff on August 35
24, 2018. The record shows that the layoff in 2017 was due to the fact that the TBM machine
stopped working and work for the employees was expected to cease for only a limited period of
time. As such, the Respondent fully expected that the employees would be recalled as soon as the
machine was working again, and it provided written notice of that layoff and the recall dates for
employees. Conversely, the layoff in August 2018 was due to a reduction in force based on the 40
fact that certain aspects of the job were coming to completion and some employees needed to be
released from work with no expectation of recall. In addition, even though there is no contractual
requirement that the Union be provided with written notice of pending layoffs, the Respondent
nevertheless provided the Union with advance notice of the August 24, 2018 reduction in force
layoff, and it even provided the Union with the identities of those who were subject to the layoff. 45
In this connection, on August 7, 2018, Chastka informed Orr by email that they “should discuss
the upcoming layoffs associated with the tunnel work coming to an end…,” and on or about August
JD–09–20
31
20, Chastka presented Floyd with a list of the employees who were going to be laid off. (GC Exh.
18; Tr. 103, 934, 1155–1156.) Thus, consistent with past practice, the Respondent provided the
Union with advance written notice of the August 24, 2018 layoff, it explained the reason for the
layoff, and it provided the Union with the names of the employees that were expected to be laid
off.5
(iii) The alleged inference that Respondent’s proferred reason for Thompson’s
layoff/discharge was pretextual
As mentioned above, the Board held in Electrolux Home Products, 368 NLRB No. 34, slip 10
op. at 3 (2019), that the Board may infer from the pretextual nature of an employer’s proffered
justification for an adverse action that the employer acted out of union animus, “at least where . . .
the surrounding facts tend to reinforce that inference.” Citing Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d at 470 (emphasis added).
15
The General Counsel submits that it can be inferred that Respondent’s explanation for
Thompson’s layoff was pretextual and that Chastka’s and Quinn’s explanation that Thompson was
laid off because a significant part of the work was coming to completion, was actually a ruse based
on the facts that: (1) there was still yard work left to be completed; (2) Thompson was a qualified
and knowledgeable yard crew worker who should have been retained; (3) some yard work 20
remained on the jobsite for several months after Thompson was laid off, which he could have
performed; (4) about a month prior to Thompson’s layoff for lack of work, the Respondent hired
additional yard crew workers; and (5) Thompson should have been retained over yard crew
employee Mark Strong, who was not laid off.
25
In considering and analyzing the General Counsel’s arguments, I initially find it important
to note that as articulated above, both Chastka and Quinn were very credible witnesses and their
demeanors were honest and truthful. Their testimonies were unrebutted and they testified in a
consistent and convincing manner. I therefore find that the reasons they articulated for including
Thompson in the reduction in force were credible and believable. In addition, for the reasons set 30
forth below, I further find that their explanations for including Thompson in the reduction in force
were plausible and supported by the record evidence.
In regard to the assertion that there was still yard work left to be completed when Thompson
was laid off, I find that the General Counsel’s reliance on that fact is misplaced. It is undisputed 35
that there was in fact some yard work left to be completed after Thompson’s layoff. However, the
reason set forth by the Respondent was not that all yard work was completed, but instead that some
of the primary work which Thompson was performing was coming to completion. In that
connection, the record showed that the tunnel was nearing completion, and the concrete segment
delivery work in the yard, much of which was being performed by Thompson, was likewise 40
coming to completion. The record shows that Thompson was involved in handling the delivery of
the segments, and Monty Thompson testified that Ivan Thompson was the employee who had been
primarily performing segment work for the preceding several months. In addition, Monty
Thompson testified that he, Ivan Thompson, and Mark Seese were the only yard crew employees
trained on completing the segment delivery paperwork, and that when Monty sustained an injury 45
in early August 2018, Ivan Thompson took over the duties associated with handling the segment
JD–09–20
32
work. Thus, it is believable and plausible that when the segment work was coming to an end, Ivan
Thompson would have been one of the employees selected for the reduction in force.
In support of his argument of pretext, the General Counsel also contends that it can be
inferred that Thompson was laid off for his protected activities because he was a qualified and 5
knowledgeable yard crew worker who should have been retained. In making this argument, the
General Counsel specifically relies on Foreman Mark Seese’s assertion that Thompson was the
“most knowledgeable” yard crew worker. The General Counsel’s reliance on Seese’s opinion,
however, is misplaced and does not support an inference of pretext. Initially, I note that Seese
based his opinion that Thompson was the “most qualified” yard worker on the fact that he allegedly 10
“had a general knowledge of where everything [was] in the [conex boxes]” and he was “very
organized and clean.” (Tr. 245–246.) Despite Seese’ opinion, there is no credible evidence that
Ivan Thompson was the only Yard Crew employee who knew where items were located in the
Conex Boxes or that he was the only employee who was organized and clean.35 There is likewise
no evidence that the other yard crew employees were incapable of performing their job functions15
because they somehow did not know where items were located, or because they were disorganized
or unclean. In addition, the record did not establish that Seese was one of the individuals who
determined which employees should be laid off in a reduction in force situation, nor did it establish
that the Respondent relied upon his recommendation regarding layoffs. Instead, the record clearly
established that Chastka was the manager responsible for determining reduction in force layoffs, 20
and that he considered the recommendations of his general superintendent, Mike Quinn. Thus,
while Seese’s opinion may have been relevant, it was in no way determinative on the issue of
which employees should or should not be included in a reduction in force.36
Moreover, the Respondent never disputed the fact that Thompson was a good worker and 25
that he was qualified to perform yard work. However, even assuming that Thompson was one of
the most qualified yard workers, the record does not establish that the best workers were immune
from being chosen for layoff in reduction in force situations. In fact, as Chastka credibly testified,
“sometimes [you have to choose] between two good people.” (Tr. 1141.) Furthermore, as
mentioned above, Chastka’s testimony pertaining to the reason Thompson was chosen for the 30
reduction in force was plausible and supported by the record because the last delivery date for

35 I find that Seese’s general assertion at trial that no other laborers knew where items were located in
the Conex Boxes and that “[n]obody else knew where the stuff was . . .,” was an exaggeration and simply
not credible, believable or plausible. Therefore, I provide that testimony little, if any, weight. (Tr. 246.)
36 The General Counsel did not allege, either in the Complaint, the Amendment to Complaint, or at
trial, that Mark Seese was a supervisor or agent of the Respondent within the meaning of Sec. 2(11) and
(13) of the Act, respectively. Nevertheless, in its post-hearing brief, he “urges the [Administrative Law
Judge] to find that at all material times, Respondent’s foreman, Mark Seese, was a supervisor of Respondent
within the meaning . . . of the Act.” (GC Br. p.18, fn. 3.) To the extent that the General Counsel’s “urging”
can be interpreted as a post-hearing motion to amend the complaint, I find that such a determination is
unwarranted and not supported by the record. The General Counsel had ample opportunity, both before
and during the trial, to make a motion to amend the complaint to include that allegation, or to even seek to
have the parties stipulate to that fact, but it failed to take either of those actions. Thus, the Respondent was
never aware that Seese’s supervisory status was at issue, and, importantly, the matter was never litigated.
For the General Counsel to now seek that determination, where the Respondent was never put on notice or
provided an opportunity to present evidence on that allegation, such a request is unwarranted and is
therefore denied.
JD–09–20
33
segments at the jobsite was August 22, 2018, and a substantial amount of work that the yard crew,
and in particular Ivan Thompson, played a substantial role in, was winding down and soon to be
completed. (Tr. 1132–1133; 1139; 1322.) Thus, Chastka’s reasons for including Thompson as one
of the employees for layoff was consistent with the undisputed evidence.
5
The General Counsel also argues that since some yard work remained for several months
after Thompson’s layoff, that supports an inference that the reduction in force, and the reason for
including Thompson in it, were pretext. (GC Br. p. 19.) This argument is unpersuasive and
baseless. In support of this assertion, the General Counsel relies on Seese’s testimony that some
of the managers, including Chastka and Quinn, told him early on in the project that it was expected 10
that the yard crew would remain on the job after the tunneling work was completed. However,
Seese’s testimony about how long he would remain on the project and how much work would be
left to perform is simply immaterial to Thompson’s layoff. Seese testified that when he inquired
about how long the project would conceivably last, he was inquiring in the context of his wanting
to move to the Respondent’s next project to work as a foreman or as a tunnel boring machine 15
operator. (Tr. 218.) It was not in the context of inquiring about how long Ivan Thompson would
be working on the project. In addition, the record does not establish that Seese ever asked how
long everyone on the yard crew would be expected to work on the project, or how long Ivan
Thompson would be guaranteed to work on the project. In fact, there is no evidence that
Respondent made any guarantees or assurances to Seese or any other employees about the duration 20
of the project. To the contrary, the General Counsel actually presented evidence that directly
contradicted its assertion or suggestion that the Respondent gave assurances that Thompson was
to avoid layoff and stay on the project to the very end. In regard to the expected duration of Ivan
Thompson’s work on the project, Seese specifically testified that between the time shortly after he
became a foreman in November 2017 and the time of the “broom incident,” which occurred in or 25
before June 2018, Mike Quinn told him “multiple times” that Ivan Thompson would be one of the
first employees removed from the jobsite. (Tr. 290–291.)
In addition, the General Counsel argues that pretext can be inferred based on the fact that
in July 2018, about a month prior to Thompson’s layoff for an asserted lack of work, the 30
Respondent hired some additional yard crew workers. (GC Br. p. 19–20.) While the record did
show that the Respondent hired some laborers up to August 9, 2018, to perform work on the
project, it also established that Chastka provided a credible and plausible explanation for the hiring
of those employees that shows it was unrelated to Thompson’s layoff. As mentioned above, when
questioned as to why Respondent would hire laborers as late as August 9, 2018 to work on the 35
project, Chastka testified that auxiliary work needed to be performed at the retrieval shaft where
the TBM was going to complete the tunnel and be removed from the jobsite. He credibly explained
that other laborers were hired to complete that work since the remaining laborers on the project
were working in other areas on other tasks. (Tr. 98–99; GC Exh. 32 (a) and (b).) Chastka also
credibly testified that “it was a timing issue” because “the Yard crew still had to perform their 40
work while the mining was happening,” and the Respondent needed the newly hired laborers to
“prep for the mining machine to be able to come through the shaft wall, build a cradle, a surface
to be able to pull the machine out and rip it apart.” (Tr. 1157–1158.) Thus, this argument also
lacks merit.
45
Finally, the General Counsel bases his argument of pretext on the fact that yard crew
employee Mark Strong was retained while Thompson was laid off. (GC Br. p. 20–22.) In making
JD–09–20
34
this argument, the General Counsel submits that Chastka was “unable to provide any logical
explanation that Strong had increased abilities or was a better at [sic] team worker than
Thompson.” (GC Br. p. 22.) Contrary to the General Counsel’s assertions however, the record
does not support that argument. It is true that after the August 24, 2018 reduction in force, Mark
Strong, Mia Turner, and Monty Thompson remained on the yard crew. (Tr. 1157.) However, with 5
regard to the reason Mark Strong was not chosen for layoff and Ivan Thompson was, Chastka
credibly explained that at the time of layoff he had knowledge of Strong’s work ability and had
interacted with him for about a year, which included having conversations with him at the morning
Take 5 meetings. (Tr. 929.) Chastka also testified that he believed that Strong was better in “ability
and teamwork” than Thompson at the time of the layoff, and that included Strong being more of a 10
“self starter, having more knowledge, and communicating better with supervision.” (Tr. 930–933.)
Based on the above, I find that while Ivan Thompson was engaged in union and protected
concerted activities in his interview with Moncada, the General Counsel failed to establish beyond
a preponderance of the evidence that those protected activities were a motivating factor in his 15
layoff/termination. The evidence failed to establish that the Respondent’s decisionmakers had
knowledge of Thompson’s protected statements and activities at the time they decided to lay him
off, and the record is devoid of any evidence that the Respondent harbored animus toward
Thompson’s protected activities. Critically, the evidence is speculative at best, and insufficient to
support any reasonable inference of unlawful motivation or animus by the Respondent. That 20
includes the fact that there is no evidence, either direct or circumstantial, that Respondent departed
from past practice in instituting its reduction in force layoff. Furthermore, under the circumstances
of this case, the evidence does not support an inference that Respondent’s proffered reasons for
including Thompson in the reduction in force were pretext for unlawful motivation, or that there
was a causal relationship between the Thompson’s union or protected concerted activity and the 25
Respondent’s adverse employment action. See, Tschiggfrie Properties, Ltd., supra slip op. at 1 and
8.
Even assuming, however, that the Respondent’s asserted reasons in this case were found
to be pretextual, the Board has held that such evidence would be insufficient to warrant an 30
inference that the decision to lay Thompson off was motivated by his protected activities. In
Electrolux Home Products, supra, the Board found that an employer’s proffered justification for
discharging an employee (instead of imposing lesser discipline) was pretextual based on disparate
treatment. Id. In that case, employee Mason participated in the union bargaining team or
committee, and she was told by a supervisor to “shut up” when she spoke up in a captive-audience 35
meeting held by the employer. The Board found, however, that on the record as a whole, it could
not find that the disparity in disciplinary treatment warranted an inference that the discharge was
motivated by Mason’s union activities. Id. slip op. at 4–5. In making that finding, the Board noted
that the General Counsel, who bore the burden of proving unlawful motivation, had not shown that
the employer committed any contemporaneous unfair labor practices, and that there was nothing 40
suspicious about the employer’s investigation into Mason’s failure to perform certain work that
was requested. Id. slip op. at 4. The Board further explained that the interaction between Mason
and her supervisor in a group meeting where he told her to “shut up,” was an attempt to limit its
captive-audience meeting to the expression of its own views, and although rude, it did not by itself,
or in conjunction with the evidence of disparate treatment, establish that the employer harbored 45
union animus. Id. In addition, the Board reasoned that the record did not contain any animus
against collective bargaining or toward Mason and others on the bargaining team. Id. In that
JD–09–20
35
connection, the Board specifically noted that when Mason was discharged, the employer and union
had been bargaining in good faith and the record did not contain any instances of animosity during
that bargaining, nor did it suggest any reason why the employer “would have singled Mason out
from the group of employees who served on the bargaining committee.” Id. slip op. at 4. Under
the circumstances of that case, the Board did not find that disparity in disciplinary treatment 5
warranted an inference that the discharge was motivated by Mason’s union activities, and as such,
the General Counsel failed to satisfy his burden of proving that Mason’s union activity was a
motivating factor in her discharge. Id. slip op. at 4–-5.
In applying some of the above factors to the instant case, I note that there is no evidence 10
that the Respondent has committed contemporaneous unfair labor practices or that it harbored
animus toward Thompson or any other employees who participated in its grievance investigation
by way of interviewing with Moncada. In addition, at the time of Thompson’s layoff, the
Respondent maintained an ongoing relationship with the Union since the beginning of the OCIT
project in 2015. The record also shows that the Respondent had good communications with the 15
Union, which included advance notice and discussions about layoffs in both the December 2017
and August 24, 2018 layoffs. Like the employer’s bargaining relationship with the union in
Electrolux Home Products, Inc., the record in the instant case is devoid of any evidence that the
Respondent harbored animosity or hostility toward the Union over the course of the project or
toward employees who participated in the grievance investigation by providing interviews to 20
Moncada.
Moreover, similar to the Board’s determination in Electrolux Home Products that Mason
was not singled out from the bargaining team as someone who should receive disparate treatment
for her engagement in that protected union activity, there is insufficient evidence in the instant 25
case to suggest that Respondent singled out Thompson from the employees who participated in
the investigatory interviews or who specifically registered complaints about working conditions
or made negative statements about the conduct of Respondent’s managers on the OCIT project.
In fact, the record establishes that several Local 894 members who were interviewed by Moncada
and made specific complaints about their working conditions and the way they were treated by 30
Respondent’s management personnel, were not laid off or terminated. For example: (1) Greg
Dougherty discussed double standards with regard to employees he saw smoking in the tunnel; (2)
Mark Strong stated that he thought there were issues with nepotism, he “felt that there was a culture
of fear on the jobsite,” and that he had a safety incident shortly after he started working there that
he was afraid to report; (3) Mia Turner stated that working for the Respondent was “horrible,” she 35
was “uncomfortable being there,” she believed there was prejudice at the jobsite, race issues,
“clickishness,” favoritism, fear of retaliation, and she did not trust her supervisor, Jack Harris; (4)
Joe Minor stated that only a few African-Americans worked in the tunnel or remained in the tunnel
once they were assigned to the tunnel crew; and (5) Monty Thompson told Moncada about
numerous workplace concerns, including the “broom incident.” (Tr. 1197–1206.) Despite 40
registering similar complaints about working conditions and Respondent’s managers/supervisors,
none of those employees were included in the August 24 reduction in force or were terminated.37

37 I also find it important to note that the General Counsel’s assertion that it should be inferred that
Thompson was singled out for his protected statements in his interview is belied by the fact that Local 894
member and yard crew employee Patricia Wheeler was also laid off on August 24, 2018, as part of the
reduction in force, and she was neither interviewed by Moncada or a participant in the Respondent’s
JD–09–20
36
See Electrolux Home Products, supra, slip op. at 4–5; Alexandria NE LLC, 342 NLRB 217, 221–
222 (2004) (finding punishment for first-time offense harsh but failing to find a violation based on
the absence of evidence in the record to infer that the discharge was causally related to union
animus); See also New Otani Hotel & Garden, 325 NLRB 928, 928 fn. 2 (1998) (finding that the
record as a whole did not warrant an inference of antiunion motivation for discharges despite some 5
evidence of disparate treatment).
c. Even assuming the General Counsel made a prima facie case of discrimination, the
Respondent demonstrated that the same action would have taken place even in the
absence of the protected activity10
Once it is determined that the General Counsel failed to carry his burden of proving a prima
facie case of discrimination, no further analysis is required. However, even assuming for the sake
of argument that the General Counsel demonstrated that Thompson’s protected activity was a
motivating factor in the decision to lay him off, the Respondent has established, by a 15
preponderance of the evidence, that the same action would have taken place even in the absence
of the protected activity.
The evidence in this case does not establish that the Respondent instituted a reduction in
force in order to terminate Thompson for his protected activities, nor does it show that he was 20
included in that layoff because of those activities. Instead, the credible record evidence establishes
that the reduction in force was planned and discussed with the Union prior to Thompson’s exercise
of protected activities in his interview on August 17, 2018. There is also no evidence, either direct
or circumstantial, that Respondent departed from past practice in instituting its reduction in force.
As mentioned above, the credible evidence provides that the Respondent had discussions regarding 25
the reduction in force well in advance of Thompson’s exercise of protected activities in his
interview. Also, well in advance of Thompson’s protected activities, and even before Moncada
was contacted about the Union’s grievance, Chastka informed the Union by email that they “should
discuss the upcoming layoffs associated with the tunnel work coming to an end….”
30
The Respondent also demonstrated that the reduction in force, and the inclusion of
Thompson in that layoff, were justified for reasons unrelated to Thompson’s exercise of his
protected activities. The evidence established that Ivan Thompson was involved in performing a
substantial part of the segment work and the paperwork involved with receiving the segments.
When Monty Thompson was injured in early August, Ivan Thompson took over his duties handling 35
and receiving the segments. The evidence also established, as Chastka and Quinn credibly
testified, that such yard crew work that Thompson played a substantial role in performing, was
expected to be reduced as the tunnel neared completion, and in fact, several days before the
reduction in force was implemented the last concrete segments were delivered to the jobsite. In
addition, the TBM broke through and completed the tunnel at the retrieval shaft shortly thereafter, 40
at the end of August 2018. Consistent with the undisputed fact that the tunnel construction was
nearing completion, the Respondent continued to reduce its work force after Thompson’s layoff,
and over the next several months the work force was reduced from nearly 60 employees prior to
August 2018 to approximately 11 union employees at the time of the hearing in this matter.
Finally, from August 24 to November 30, 2018, additional reductions to the work force occurred 45

investigation.
JD–09–20
37
with other employees being laid off or terminated, including several of whom participated in
Moncada’s investigation and interviews on August 17, 2018. Thus, the credible evidence
establishes that the Respondent would have included Ivan Thompson in the reduction in force even
if he had not engaged in protected activities in his interview with Moncada on August 17, 2018.
Accordingly, the evidence does not establish that the Respondent’s layoff and/or termination of 5
Ivan Thompson violated Section 8(a)(3) and (1) of the Act, as alleged.
CONCLUSION OF LAW
The General Counsel has failed to prove by a preponderance of the evidence that 10
Respondent violated Section 8(a)(3) and (1) of the Act by laying off and/or terminating employee
Ivan Thompson.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended3815
ORDER
The complaint is dismissed in its entirety.
20
Dated, Washington, D.C. March 12, 2020

Thomas M. Randazzo25
U.S. Administrative Law Judge

38 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
ex z..i.,,.),._