Landmark Installations, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 422 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422
Landmark Installations, Inc. and Local Union No. 272
and Shopmen’s Local Union No. 698 of the In-
ternational Association of Bridge, Structural,
Ornamental, and Reinforcing Ironworkers.
Cases 12–CA–21376 and 12–CA–21441
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
WALSH
On January 22, 2002, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Gen-
eral Counsel filed an exception and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
adopt the recommended Order as modified below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge and
orders that the Respondent, Landmark Installations, Inc.,
Pompano Beach, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified below.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix.” Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 12, after being signed by the Respon-
dent’s authorized representatives, shall be posted by the

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by interrogating employees concerning
their union membership, informing its employees that it would be futile
for them to select the Union as their collective-bargaining representa-
tive, threatening employees with closure of the Pompano Beach, Flor-
ida facility if the employees selected the Union as their collective-
bargaining representative, and threatening its employees with layoffs,
discharge, and unspecified reprisals if the employees selected the Union
as their collective-bargaining representative or engaged in union activi-
ties. There are also no exceptions to the judge’s finding that the Re-
spondent violated Sec. 8(a)(3) and (1) of the Act by discharging em-
ployee Adolfo Gonzalez and by laying off five employees and refusing
to consider these employees for recall and/or to recall them.
2 In its exception, the General Counsel argues that the judge inadver-
tently failed to direct the Respondent to mail the notice to employees to
all of its employees. The General Counsel argues that this is necessary
because the Respondent’s employees work at different construction
jobsites outside of the Respondent’s office, and because the Respon-
dent’s employees employed at the time of its unlawful conduct may not
currently be employed. The Respondent does not controvert any of the
facts asserted by the General Counsel supporting its request and filed
no opposition to the General Counsel’s exception.
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In addition, mail to all
current and former employees employed by the Respon-
dent at any time since March 2001 a copy of the attached
notice marked “Appendix.”3 Copies of said notice, on
forms provided by the Regional Director for Region 12,
after being duly signed by an authorized representative of
the Respondent, shall be mailed to the persons above-
stated immediately upon receipt. Proof of such mailings,
with the names and addresses of the persons to whom the
notices were mailed and the date of such mailings, shall
be furnished to the Regional Director for Region 12,
within 5 days after such notices were mailed.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unlawfully interrogate our employees
concerning their membership in Local Union No. 272
and Shopmen’s Local Union No. 698 of the International
Association of Bridge, Structural, Ornamental, and Rein-
forcing Ironworkers, AFL–CIO and/or their union activi-
ties and sympathies and those of their fellow employees.
WE WILL NOT inform our employees that it would be
futile for them to select the Union as their collective-
bargaining representative.
WE WILL NOT threaten our employees with closure of
our Pompano Beach, Florida facility if they select the
Union as their collective-bargaining representative.
WE WILL NOT threaten our employees with discharge,
layoffs and unspecified reprisals if they select the Union
as their collective-bargaining representative.
339 NLRB No. 59
LANDMARK INSTALLATIONS, INC. 423
WE WILL NOT discharge our employees, lay off our em-
ployees and/or refuse to consider them for rehire and/or
refuse to rehire them because of their membership in a
union or their engagement in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of this Order of-
fer full reinstatement to Adolfo Gonzalez, Lawrence
Hodgson, Luis Felix Gonzalez, Bertie Gottshaw, Raidel
Rivero, and Jose Zepeta to their former jobs or to sub-
stantially equivalent jobs if their former jobs no longer
exist and will make them whole for all loss of earnings
and benefits sustained by them because of our unlawful
discharge of Adolfo Gonzalez and the unlawful layoffs
and refusal to consider for rehire and refusal to rehire
Lawrence Hodgson, Luis Felix Gonzalez, Bertie Gott-
shaw, Raidel Rivero, and Jose Zepeta, with interest.
WE WILL within 14 days from the date of this Order
remove from our records any reference to the unlawful
discharge of Adolfo Gonzalez and the unlawful layoffs,
refusal to consider for rehire and refusal to rehire of
Lawrence Hodgson, Luis Felix Gonzalez, Bertie Gott-
shaw, Raidel Rivero, and Jose Zepeta and will notify
them in writing that the unlawful discharge of Adolfo
Gonzalez and layoffs and refusal to consider for rehire
and refusal to rehire the other above-named employees
will not be used against them in any way.
LANDMARK INSTALLATIONS, INC.

Marcia Valenzuela, Esq. and Jennifer Burgess-Solomon, Esq.,
for the General Counsel.
Mitchell J. Olin, Esq., for the Respondent.
Brian Rodgers, Union Business Manager, for the Charging
Party.
DECISION
STATEMENT OF THE CASE 1
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on October 9 and 11,
2001, in Miami, Florida. The complaint as amended at the hear-
ing was issued by the Regional Director of Region 12 of the
National Labor Relations Board (the Board) on charges filed by
Local Union No. 272 and Shopmen’s Local Union No. 698 of
the International Association of Bridge, Structural, Ornamental,
and Reinforcing Ironworkers, AFL–CIO (the Charging Party or
the Union) and is based on amended charges filed in Case 12–
CA–21376 on May 25, 2001, and in Case 12–CA–21441 on
May 25, 2001, and alleges that Landmark Installations, Inc. (the
Respondent or the Company) violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act). Respondent has
by its answer as amended at the hearing denied the commission

1 All dates are in 2001 unless otherwise noted.
of any violations of the Act and has raised affirmative defenses
thereto.
On the entire record, including testimony of the witnesses
and exhibits received in evidence and after review of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits and I find that at
all times material herein during the 12 months preceding the
filing of the complaint Respondent has been a Florida corpora-
tion, with an office and place of business located in Pompano
Beach, Florida, where it has been engaged in the construction
business as an awnings installer and that in conducting its busi-
ness operations, it purchased and received at its Pompano
Beach facility goods and materials valued in excess of $50,000
from other enterprises, including Innovative Business Solutions
located within the State of Florida, each of which other enter-
prises had purchased and received these goods and material
directly from points located outside the State of Florida and
Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Landmark is a construction company which installs steel
frames, landings, and decks. It commenced its operations in
October 1999. Its owner and president is Michael Herman.
Landmark undertook a steel-framing project on Pembroke Road
known as the Pembroke project in February 2001. The jobsite
supervisor was Daniel Arnouil. Herman and Arnouil were at all
times material herein supervisors and agents of Respondent
under Section 2(11) and (13) of the Act. The Pembroke job
which commenced in late February 2001, was finished in April
2001. Respondent hired a number of ironworkers to set up a
steel frame, weld and install steel flooring for the Pembroke
job. The evidence disclosed that Respondent hired these em-
ployees without knowing whether they were union members or
not. Included among these workers were several members of
the Union who had been informed by the Union or by fellow
employees that Respondent was hiring iron workers for the
project. Among those who applied and were hired were union
members Adolfo Gonzalez, Lawrence Hodgson, Bertie Gott-
shaw, Luis Felix Gonzalez, Jose Zepeta, Raidel Rivero, and
Issac Thomas. These employees were hired without regard to
their union or nonunion status and sympathies and none were
questioned concerning their union affiliation or sympathies.
None of these employees wore any items referring to their un-
ion membership. Lawrence Hodgson was an active union or-
ganizer. He discussed the advantages of union membership
with nonunion employees and reported daily to Union Business
Manager Brian Rodgers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 424
On Friday, March 9, 2001, the Union filed a petition for an
election asserting that they had the support of the requisite
number of employees in the unit who supported the Union in its
bid to represent the Respondent’s employees. Respondent’s
president, Herman, received the notice of a petition for an elec-
tion which was forwarded by the Board on that same date. On
the following Monday, March 12, 2001, Jobsite Supervisor Dan
Arnouil, with Herman behind him, questioned each of the em-
ployees on the Pembroke jobsite shortly before and during their
10 a.m. morning break as to whether they were members of the
Union. Bertie Gottshaw, Louis Felix Gonzalez, Jose Zepeta,
and Raidel Rivero all testified they readily admitted they were
union members but denied having initiated a union campaign at
the Pembroke job. Lawrence Hodgson initially denied his union
membership but later admitted it when confronted by Respon-
dent with information obtained by Respondent from other non-
union employees that he was the leading union organizer on the
job. He also told Arnouil and Herman that employees Raidel
Rivero and Adolfo Gonzalez were union members.
As Arnouil and Herman were questioning employees Adolfo
Gonzalez returned from his break and Arnouil turned on Gon-
zalez and stated he could not believe that the Union would ad-
mit to membership a “worthless piece of shit” such as Gon-
zalez. This triggered an immediate angry response from Gon-
zalez with the two men getting face to face in an angry confron-
tation with Arnouil waving his finger in front of Gonzalez’ face
which Gonzalez started to push away. Gonzalez did not touch
Arnouil. Arnouil pulled back and threatened to call the police
for harassment by Gonzalez. Herman attempted to quiet the
confrontation down and told Arnouil there was no need for the
police. Arnouil then fired Gonzalez. Gonzalez said he would
leave as soon as he got his paycheck. Herman made arrange-
ments for his wife to bring the paycheck to the jobsite which
she did shortly thereafter and Gonzalez departed. The termina-
tion of Gonzalez by Respondent has not been rescinded and he
has not been recalled by Respondent. In order to stem the Un-
ion’s campaign at its Pembroke jobsite Respondent threatened
employees with plant closure, layoff and discharge, and in-
formed the employees of the futility of their support of the Un-
ion. Respondent laid off the leading union organizer Hodgson
on March 22, 2001, and union supporters Gottshaw, Luis Felix
Gonzalez, Zepeta, and Rivero on March 30, 2001. Respondent
also failed to consider these employees for recall and to recall
them at Respondent’s other jobsites in Florida in contrast to its
practice of transferring employees from one jobsite to another.
Respondent replaced the union supporters with three nonunion
employees to perform welding. Other employees who had less
seniority than the laid-off employees were transferred to other
jobsites in Florida after the conclusion of the Pembroke jobsite.
At the time of the hearing all of Respondent’s employees were
nonunion supporters.
The 8(a)(1) Violations
A. Interrogation
Raidel Rivero testified that on March 12, 2001, shortly be-
fore the employees morning break, Respondent’s President
Herman asked if he was a union member. He told Herman that
he was. Bertie Gottshaw testified that shortly before break on
March 12, he observed Herman with a piece of paper talking to
two nonunion supporters and Herman then told the employees
that the Union was going to close the job down as 30 percent of
the employees were union supporters. Herman then asked Gott-
shaw if he was union and Gottshaw replied that he was. Law-
rence Hodgson testified that shortly before breaktime on March
12, Herman and Arnouil told him they had received a paper
stating that 30 percent of the employees supported the Union.
They then asked him if he were a union member which he de-
nied as he had been advised to do by Union Business Manager
Brian Rodgers. He testified further that after the break he was
again approached by Herman and Arnouil who told him that
they had been told by other employees that he was sending
reports to the Union. They asked Hodgson why he had not ad-
mitted to Respondent that he was the leader of the union cam-
paign on the jobsite. He then admitted his role in the campaign
and also told them that Adolfo Gonzalez and Raidel Rivero,
were union members in response to their questioning of him.
Gregory Penn, a current employee and a nonunion supporter
testified that Herman and Arnouil told the employees that Her-
man had received a letter from the Union which was trying to
shut the job down and then asked the employees who the union
supporters were. Herman admitted at the hearing that he and
Arnouil questioned the employees about their union member-
ship. Herman also admitted that he had been informed by non-
union supporters Gregory Penn and Alfredo Wesley that Hodg-
son was the leader of the Union’s campaign at the jobsite in
response to his and Arnouil’s questioning of them.
I credit the testimony of employees Rivero, Gottshaw, Hodg-
son and Penn as set out above which was unrebutted as Herman
admitted that he and Arnouil had questioned the employees,
and Arnouil did not testify. I find without merit Herman’s at-
tempts to explain his conduct by stating he was confused by the
petition and was merely seeking information by questioning the
employees. This is not a valid defense to the allegation that he
unlawfully interrogated the employees about their union mem-
bership activities and sympathies and those of their fellow em-
ployees. I also find without merit Herman’s contention that he
was a bystander while Arnouil interrogated employees. Clearly
by his presence and his own conduct Herman was in tandem
with Arnouil in engaging in this interrogation of the employees.
I find that Respondent, by its supervisors and agents, Herman
and Arnouil, violated Section 8(a)(1) of the Act by interrogat-
ing its employees about their union membership and sympa-
thies and those of their fellow employees. Hoffman Fuel Co.,
309 NLRB 327 (1992).
B. Threat of Closure
Adolfo Gonzalez testified that on March 12, he heard Her-
man say that the Union was taking over his business or shutting
it down. Herman admitted at the hearing that he told the em-
ployees on March 12 that he would have to close the company
if the Union won the election and that he did not explain why
he would have to close down and the employees did not ask
questions. At the hearing he testified he was referring to state-
ments attributed to the Union that the employees would earn
$20 per hour if the Union won the election. However he admit-
LANDMARK INSTALLATIONS, INC. 425
tedly did not explain this to the employees. Additionally Hodg-
son testified that on March 14, Herman told him he would shut
the job down before the Union took over the Company.
I credit the unrebutted testimony of Adolfo Gonzalez and
Hodgson as set out above and note the admission of Herman
that he made the statement attributed to him about closure of
his business and the job. Herman’s professed intent or state of
mind concerning the reason for his threat of closure is irrele-
vant in this case. I find that his threat of plant or job closure
was coercive and violative of Section 8(a)(1) of the Act.
C. Threat of Futility of the Support of the Union
Herman admitted at the hearing that on March 12, he told the
employees that the Union would not be good for a small com-
pany such as his company and that he would not have the Un-
ion run his company. He offered an explanation at the hearing
that he was referring to union wages and benefits which he
believed would put him out of business. However he did not
offer this explanation to the employees. His purported state of
mind concerning the reasons for his statements to the employ-
ees is irrelevant. His subsequent written statement to employees
in his letter of April 17 reinforced his earlier threat by stating in
pertinent part that the employees would not gain any benefits
from the Union’s involvement.
Thus his statement of March 12 as reinforced by the April 17
letter to employees was clearly a threat of the futility of the
employees’ support for the Union and violated Section 8(a)(1)
of the Act. Wellstream Corp., 313 NLRB 698, 706 (1994).
D. Threats of Layoff and Discharge
Gottshaw testified that on March 12, Arnouil told a group of
employees that he had received the petition and that he could
lay off and fire everybody on the job. Gottshaw further testified
that Arnouil also told the employees he did not care less who
wanted to leave the job. Aldolfo Gonzalez testified that as he
was returning from break he heard Arnouil tell the employees
that he was going to start firing people starting with Adolfo
Gonzalez who he called a “worthless piece of shit” whereupon
he turned on him and ultimately discharged him.
Hodgson also testified that Arnouil threatened to discharge
him after Hodgson admitted to his union activities when con-
fronted by Arnouil a second time.
I credit the testimony of Adolfo Gonzalez and Hodgson as
set out above which was unrebutted as Arnouil did not testify
and Herman did not rebut this testimony. I thus find that Re-
spondent violated Section 8(a)(1) of the Act by threatening
employees with layoff and discharge. Bestway Trucking, 310
NLRB 651, 671 (1993).
E. Threat of Unspecified Reprisals
Hodgson testified that on March 14, Herman refused to help
him carry a box of heavy rods and stated that he could not help
Hodgson because he (Herman) was not a union member. This
statement by Herman to Hodgson occurred only 2 days after the
incidents of March 12, when Hodgson had been discovered by
Respondent to have been the leading union organizer on the
jobsite. This statement was clearly coercive and a threat of
unspecified reprisals for his role as the leading union organizer
and was violative of Section 8(a)(1) of the Act. F. W. Wool-
worth Co., 310 NLRB 1197, 1200 (1993).
F. The Discharge of Adolfo Gonzalez
Several factors are considered by the Board in analyzing dis-
crimination cases under Section 8(a)(3) and (1) of the Act in
accordance with Wright Line, 251 NLRB 1083 (1980), enfd.
622 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
The General Counsel must establish that the employer had ani-
mus against the Union, had knowledge that the alleged dis-
criminatee was a union supporter and/or of the alleged dis-
criminatees’ union activities and took an adverse job action
against the employee which was motivated at least in part by its
antiunion animus. In making this determination the timing of
the adverse job action in relation to the animus and knowledge
of the employees’ union membership, union activities and sen-
timents is to be considered to determine whether there is a
nexus between the adverse job action and the employees’ union
affiliation. Masland Industries, 311 NLRB 184 (1993)
In the case before me, it is clear that all of the elements re-
quired to establish a prima facie case are present. Herman re-
ceived the petition for an election on March 9, a Friday, and
showed it to Arnouil and then both commenced questioning
employees on March 12, the following Monday morning
shortly before the morning breaktime with Arnouil issuing
threats of discharge to the employees. Leading union advocate
Hodgson initially denied any knowledge of union activities
when questioned by Herman and Arnouil, but subsequently
admitted his union role when told by Arnouil that other em-
ployees had identified him as the leader of the union campaign.
When asked by Arnouil who the other union members were,
Hodgson identified Raidel Rivero and Adolfo Gonzalez as
union members. At this point Adolfo Gonzalez was returning
from his break and Arnouil immediately turned on him calling
him a worthless piece of shit which led to an angry verbal con-
frontation between Adolfo Gonzalez and Arnouil who was
putting his finger up to the face of Adolfo Gonzalez. When
Adolfo Gonzalez moved to brush the finger away from his face,
Arnouil threatened to call the police. Upon being told by Her-
man that the police were not necessary, Arnouil proceeded to
discharge Adolfo Gonzalez.
Under these circumstances it is clear that the Respondent had
animus against the Union and its supporters as established by
the numerous 8(a)(1) violations and the record as a whole. It is
clear that Respondent had knowledge that Adolfo Gonzalez
was a union member, having just been identified as a union
member by Hodgson. It is undisputed that Arnouil turned on
Adolfo Gonzalez and engaged in an angry confrontation with
him threatening to call the police and then discharged him.
There was no evidence or contention that Adolfo Gonzalez
engaged in any physical contact with Arnouil. Rather it is clear
that Arnouil was the aggressor in this confrontation. Cleary the
nexus between Respondent’s antiunion animus and the dis-
charge of Adolfo Gonzalez has been established. Masland In-
dustries, supra.
Once the General Counsel has established a prima facie case
that the protected conduct (engagement in union activities and
in this case union membership) was a motivating factor in an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 426
employer’s action against the employee (the discharge of
Adolfo Gonzalez) the burden shifts under Wright Line, supra to
the employer to demonstrate that it would have taken the same
action even in the absence of the protected conduct. This bur-
den is not carried by merely showing that it also had a legiti-
mate reason for the taking the adverse action. Rather it must
“persuade” that the action would have taken place in the ab-
sence of the protected conduct “by a preponderance of the evi-
dence.” Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
If the employer fails to carry its burden of persuasion, a viola-
tion will be found. Bronco Wine Co., 256 NLRB 53 (1981).
I find that Respondent has failed to carry its burden of per-
suasion in the instant case. Initially the testimony of what oc-
curred as related by the employees who testified was not rebut-
ted by Arnouil who did not testify and was largely admitted by
Herman. In its shifting defenses, Respondent initially attempted
to cast Adolfo Gonzalez as a poor worker who was discharged
because of poor job performance. It then contended that Gon-
zalez was discharged because of his engagement in the confron-
tation with Arnouil, ignoring the undisputed fact that Arnouil
initiated the confrontation and turned on Adolfo Gonzalez im-
mediately after learning he was a member of the Union. Her-
man testified that Adolfo Gonzalez was a slow worker and that
Arnouil had previously joked with him that Gonzalez must be
Herman’s uncle because he had retained him as an employee in
spite of his alleged poor work performance. I find these de-
fenses without merit and credit Adolfo Gonzalez’ unrebutted
testimony that he had never been apprised by either Herman or
Arnouil that his work was deficient, that he had several years’
experience as an ironworker, had worked on large commercial
jobs, had never been discharged (as opposed to a layoff for lack
of work), was rehired by a former employer and was working
as an ironworker at the time of the hearing. I thus find that the
General Counsel has established a prima facie case of a viola-
tion of Section 8(a)(3) and (1) of the Act, that Adolfo Gonzalez
was discharged by Respondent because of his membership in
the Union. I find Respondent has failed to rebut the case by the
preponderance of the evidence. Wright Line, supra; Sea Ray
Boats, Inc., 336 NLRB 779 (2001).
G. Alleged Unlawful Layoffs, Failure to Consider for Recall
and Failure to Recall
The complaint alleges that Respondent laid off employee
Lawrence Hodgson on March 22, 2001, and laid off employees
Luis Felix Gonzalez, Bertie Gottshaw, Raidel Rivero, and Jose
Zepeta on March 30, 2001, and that since their layoffs Respon-
dent has failed to consider for recall and has failed to recall all
of these employees. All of these employees except Zepeta testi-
fied concerning their layoffs and Respondent’s president, Her-
man, admitted that these employees were laid off by Respon-
dent and that they have never been recalled by Respondent.
Herman also conceded on cross-examination that Respondent
has hired new employees since the layoff of the above-named
employees and has transferred other employees to other jobs.
Herman also concedes there were several other jobs continuing
up to the date of the trial which were filled by new employees
and by the transfer of other employees. Nonunion employee
Alfredo Wesley, was recalled to another job in June after hav-
ing been laid off. As of the dates of their layoffs the Respon-
dent had purged itself of all the union members with the excep-
tion of Issac Thomas. The initial layoff of Hodgson on March
22 and of Luis Felix Gonzalez, Gottshaw, Rivero, and Zepeta
on March 30 occurred close in time to March 12 when the Re-
spondent, upon learning of the union campaign, had interro-
gated and threatened its employees concerning their union
membership and support and that of their fellow employees and
had learned these employees were union members and had
discharged Adolfo Gonzalez all as set out above in this deci-
sion. It is clear that Respondent knew who the union members
were following the interrogation of all its employees on March
12. Hodgson testified that on the second inquiry of him by Ar-
nouil and Herman, he admitted his role as the Union’s organ-
izer on the job. In response to further questioning by Arnouil
and Herman, he also told them that employees Raidel Rivero
and Adolfo Gonzalez were union members. Further nonunion
employee Gregory Penn who was currently employed by Re-
spondent as of the date of the hearing testified that Raidel
Rivero, Luis Felix Gonzalez, Jose Zepeta, Issac Thomas, and
Bertie Gottshaw all told Arinouil and Herman that they were
union members also.
As in the case of Adolfo Gonzalez, Respondent has offered
shifting defenses to the layoff allegations. Initially Herman
testified that the five discriminates were laid off because of lack
of work on the Pembroke job. Herman admitted that he told the
employees that he would recall them as new work became
available. However as of the date of the hearing he had not
recalled any of them. During this period he kept nonunion em-
ployees working by transferring them to other jobs as they be-
came available. When confronted with this apparent disparate
treatment. Herman offered testimony to the effect that the em-
ployees were poor performers and/or had poor attendance by
arriving late or not showing up. He acknowledged he had toler-
ated these alleged deficiencies without discussing them with the
employees. It is clear that the distinguishing line between these
discriminates and the nonunion employees was that these dis-
criminates were union members who Respondent sought to
eliminate from its work force. The employees testified concern-
ing their work performance. They all had years of experience
and had performed iron work on larger projects than the Re-
spondent’s project. None of them had ever been advised of any
deficiencies in their work performance or attendance by Re-
spondent.
I find that as in the case of the discharge of Adolfo Gonzalez
the General Counsel has established a prima facie case of viola-
tions of Section 8(a)(3) and (1) of the Act by Respondent. The
General Counsel has established that the Respondent had ani-
mus against the Union and its supporters as borne out by the
independent 8(a)(1) violations which I have found and the re-
cord as a whole. It has also been established that Respondent
had knowledge of the Union membership of each of the dis-
criminatees who were laid off as set out above. It has also been
established that Respondent laid off the discriminates which
was an adverse job action although there was still some work
on the Pembroke project as testified to by discriminates Gott-
shaw and Luis Feliz Gonzalez while three new employees were
brought in to perform welding and while other nonunion em-
LANDMARK INSTALLATIONS, INC. 427
ployees were not laid off. Some were transferred to other jobs
as testified by current employees. It has thus been established
that the layoffs and refusal to consider for recall and refusal to
recall the discriminatees were motivated by Respondent’s anti
union animus. The timing of these adverse job actions clearly
establishes the nexus between the adverse job actions and the
employees’ union membership. Wright Line, supra; Masland
Industries, supra. I further find that the burden has shifted un-
der Wright Line to the Respondent to demonstrate that it would
have taken the same actions even in the absence of the pro-
tected conduct. I find that Respondent has failed to carry its
burden of persuasion in this case as it has not demonstrated that
it would have taken the same actions even in the absence of the
protected conduct and that Respondent has thus violated Sec-
tion 8(a)(3) and (1) of the Act. Wright Line, supra; Roure Ber-
trand Dupont, Inc., supra, Bronco Wine Co., supra, and Sea Ray
Boats, Inc., supra. Counsel for the General Counsel has shown,
through all of the above, that (1) Respondent was hiring or had
concrete plans to hire at the time of the alleged unlawful con-
duct; (2) that it excluded the discriminatees from the hiring or
recall process; (3) that the discriminatees had experience and
training relevant to the generally known requirements of the
positions; and (4) that anti-union animus contributed to the
decision not to consider for recall and to recall the discrimi-
nates. See FES, 331 NLRB 9 (2000).
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating its employees concerning their union mem-
bership, union activities and sympathies and those of their fel-
low employees.
(b) Informing its employees that it would be futile for them
to select the Union as their collective-bargaining representative.
(c) Threatening its employees with closure of its Pompano
Beach, Florida facility, if the employees selected the Union as
their collective-bargaining representative.
(d) Threatening its employees with layoffs, discharge, and
unspecified reprisals if the employees selected the Union as
their collective-bargaining representative or engaged in union
activities.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by discharging its employee Adolfo Gonzalez on March
12, 2001.
5. The Respondent violated Section 8(a)(3) and (1) of the
Act by laying off its employee Lawrence Hodgson on March
22, 2001, and by laying off its employees Luis Felix Gonzalez,
Bertie Gottshaw, Raidel Rivero, and Jose Zepeta on March 30,
2001, and by failing and refusing to consider these employees
for recall and/or to recall them.
6. The above unfair labor practices in connection with the
business of the Respondent have the effect of burdening com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that the Respondent violated the Act, it shall
be ordered to cease and desist therefrom and take certain af-
firmative actions including the rescinding of the unlawful dis-
charge and layoffs, refusals to consider for rehire, and refusals
to rehire or otherwise discriminating against its employees. I
recommended that the discriminatees be offered reinstatement
to their former positions or to substantially equivalent ones if
their former positions no longer exist without prejudice to their
seniority or other rights and privileges previously enjoyed or to
which they would have been entitled in the absence of the dis-
crimination against them from the date of the discharge of
Adolfo Gonzalez and the layoffs of the other discriminatees.
These amounts shall be computed in the manner prescribed in
F. W. Woolworth, 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987), at the “short term Federal rate” for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 2
ORDER
The Respondent, Landmark Installations, Pompano Beach,
Florida, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union mem-
bership, activities and sympathies and those of their fellow
employees.
(b) Informing its employees that it would be the futile to se-
lect the Union as their collective-bargaining representative.
(c) Threatening its employees with closure of its Pompano
Beach, Florida facility if the employees select the Union as
their collective bargaining representative.
(d) Threatening its employees with discharge, layoff, or un-
specified reprisals if the employees select the Union as their
collective-bargaining representative or engage in union activi-
ties.
(e) Discharging employees because of their union member-
ship or engagement in union activities.
(f) Laying off its employees and/or refusing to consider them
for recall and refusing to recall them because of their union
membership or engagement in union activities
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order offer Adolfo
Gonzalez, Raidel Rivero, Luis Felix Gonzalez, Bertie Gott-
shaw, Lawrence Hodgson, and Jose Zepeta immediate and full
reinstatement to their former positions with Respondent, with-
out prejudice to their length of service, seniority or other rights

2 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428
and privileges previously enjoyed and make all of the above-
named employees whole, with interest for any loss of earnings
and benefits that they may have suffered as a result of the
unlawful discrimination against them, in the manner set forth in
the remedy section of this decision.
(c) Within 14 days from the date of the Board’s order, re-
move from the personnel file of each of the above named em-
ployees any reference to the unlawful discrimination against
them and, within three days thereafter, notify them in writing
that this has been done and that it will not be used against them
in any way.
(d) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 2001.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.