Merchants Building Maintenance LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 23, 2010

28-CA-022660 (N.L.R.B. Nov. 23, 2010)

JD(SF)-46-10
Santa Fe, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MERCHANTS BUILDING MAINTENANCE LLC
and Case 28-CA-22660
ELIZABETH CASTRO, an Individual
and Case 28-CA-22882
AXEL CARMONA, an Individual
William Mabry, Atty., for the General Counsel.
Thomas A. Lenz, Atty. (Atkinson, Andelson, Loya, Ruud & Romo),
for the Respondent, of Cerritos, California.
DECISION
I. Statement of the Case
LANA PARKE, Administrative Law Judge. Pursuant to charges filed by Elizabeth Castro
and Axel Carmona, individuals (respectively, Ms. Castro and Mr. Carmona), the Regional
Director for Region 28 of the National Labor Relations Board (the Board) issued an Order
consolidating cases, consolidated complaint and notice of hearing (the complaint) on March 31,
2010. The complaint alleges that Merchants Building Maintenance, LLC (Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act). This matter was tried in Santa Fe,
New Mexico on May 18–21 and August 23–25, 2010.1
II. Issues
A. Did the Respondent violate Section 8(a)(1) of the Act by threatening employees
with adverse consequences of their protected concerted activities, creating an
impression of surveillance of employees’ protected concerted activities, and
interrogating employees about their protected concerted activities?
B. Did the Respondent violate Section 8(a)(1) of the Act by refusing to pay
employees accrued vacation pay?
C. Did the Respondent violate Section 8(a)(1) of the Act by refusing to consider for
rehire or to rehire 22 employees because they engaged in protected concerted
activities?

1 All dates herein are 2009 unless otherwise specified.
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III. Jurisdiction
At all relevant times, the Respondent, a California corporation, with an office and place
of business in Santa Fe, New Mexico, has been engaged in the business of providing janitorial
services. During the 12-month period ending August 27, the Respondent performed services
valued in excess of $50,000 in states other than the State of New Mexico. I find Respondent
has at all relevant times been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
IV. Findings of Fact
Unless otherwise explained, findings of fact herein are based on party admissions,
stipulations, and uncontroverted testimony regarding events occurring during the period of time
relevant to these proceedings. On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the General Counsel and the
Respondent, I find the following events occurred in the circumstances described below during
the period relevant to these proceedings:
A. The Respondent’s Business
The Respondent, whose principal office is located in Monterey Park, California, has
janitorial contracts with various school districts throughout the United States. In 2008 the
Respondent contracted with the Santa Fe, New Mexico Public School District (School District) to
provide janitorial services for 32 school district facilities, including Santa Fe High School and
Capital High School (Santa Fe HS and Capital HS, respectively) for the 2008–2009 school year.
During the 2008–2009 school year, the Employer employed 14 janitorial employees at Santa Fe
HS and 11 at Capital HS (the 2008–2009 employees). For janitorial work at the other 30 school
district facilities, the Respondent maintained and administered a sub-pool of 42 on-call workers
(sub-pool employees). The Respondent maintained an office onsite at the Santa Fe HS.
Although some of the Respondent’s janitorial contracts provided for vacation pay, its contract
with the School District did not. Prior to commencing work on the 2008–2009 contract,
Mr. Ferrell explained to the 2008–2009 contract employees that they were not entitled to
vacation pay.2
On June 11 or 12, as the 2008–2009 school year drew to a close, representatives of the
School District told Mr. Ferrel that because of economic considerations the School District would
not utilize the Respondent for summer clean-up projects and that it had not yet determined
whether a 2009–2010 school year contract would be offered.
In mid-August, the School District reached agreement with the Respondent to provide
janitorial services for the Santa Fe HS and Capital HS for the 2009–2010 school year. The
contract with the School Disrict required the Respondent to conduct a criminal background
check and to verify with the Social Security Administration (SSA) social security number (SSN)
accuracy for each employee.3 Work pursuant to the terms of the contract commenced on
August 26, and on September 2, the Respondent signed the contract. The Respondent

2 It is clear from the testimony of employees Valentin Estrada and Ms. Castro, and from the
statement as to vacation pay in the June 16 letter, detailed below, that employees understood
vacation pay was limited to situations where employees worked a full year.
3 The requirement as to SSN verification was included at the Respondent’s suggestion.
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employed 11 janitorial workers at each of Santa Fe HS and Capital HS but maintained no sub-
pool and performed no work for the other 30 School District facilities.4
At all relevant times, the following individuals held the positions set forth opposite their
respective names and were supervisors of the Respondent within the meaning of Section 2(11)
of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act:5
David Haas (Mr. Haas) - President
Marco Ferrel (Mr. Ferrel) - Vice-President
Adam Navarrete (Mr. Navarrete) - Branch Manager
Saul Mendez (Mr. Mendez) - Manager
Oscar Arellano (Mr. Arellano) - Supervisor
Kathyrn Mora (Ms. Mora) - Director of Human
Resources
Maria Carrillo (Ms. Carrillo) - Supervisor
Bianca Silva (Ms. Silva) 6 - Supervisor, Santa Fe HS,
to early December 2008
Jose Martinez - Supervisor, Santa Fe HS,
early December 2008 to
May 2009
B. Concerted Protected Activity
In November, a number of the janitorial employees who worked at Santa Fe HS
formed a group they referred to as the “committee” (the Committee). On November 25, 2008
and November 26, 2008,16 of The Committee, spearheaded by Ms. Silva and assisted by
volunteers of the Somos Un Pueblo Unido (Somos), a social service organization, sent letters to
Mr. Navarrete and Mr. Mendez, respectively, demanding “better working conditions and respect
for our rights as workers and human beings.” Saying that Mr. Mendez, to whom they first
protested, had done nothing to resolve their concerns, the Committee complained, inter alia,
that Pete Ibarra, the Santa Fe HS janitorial supervisor employed by the School District, had
sexually harassed coworkers and that Mr. Arellano had created a difficult, stressful, and
disrespectful work environment. The letter noted that a copy had been sent to Mel Morgan,
associate superintendent of the School District. The following committee members signed the
letter:
Alma de Lara Carla Lopes Javier Silva
Randolfo Campos Juan Lopez7 Lillian Lopez

4 In the 2009–2010 school year, the School District employed its own janitorial workers for
facilities other than Santa Fe HS and Capital HS.
5 The Respondent contends that Bianca Silva and Ms. Castro were supervisors as defined
in Sec. 2(11) of the Act at all relevant times. Bianca Silva was an admitted supervisor within the
meaning of the Act until December 2008 when her supervisory duties were assumed by Jose
Martinez. There is no evidence that Ms. Castro, at any time, had authority to do more than
check employees’ work and perform other routine oversight duties; I find Ms. Castro did not
possess 2(11) authority during any relevant period.
6 Bianca Silva is also known as Blanca Silva.
7 At the hearing the name appearing in the complaint as “Juanita” Lopez was amended to
“Juan Lopez.”
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Otto Rene Coj Juan Sican Dario Chavez
Bianca Silva Joel Lopez Jose Pichardo
Elizabeth Castro Mairel Blanco Ana Ramirez
Liliana Lopez
On November 26, 2008, 14 of the above committee members sent a letter to Mel
Morgan, repeating the sexual harassment charges against Pete Ibarra. The Committee
additionally complained that Mr. Mendez had done nothing about the workers’ concerns, stating,
“Any time we complain to Pete Ibarra, he has threatened to have the contract between the
schools and Merchants terminated. Saul Mendez our Manager with Merchants Building has
said this is why he cannot address our concerns.” The Committee asked to meet with Mel
Morgan and the assistant directors of the School District’s general services department.
When the School District received the employee letters, School District representatives
told Mr. Navarette that the company needed to talk to their employees because employment
issues should be brought to them rather than to the School District.
Following the November 25 and 26, 2008 letters, several meetings involving employees
took place. It is not clear from the testimony the order or the specific dates in which the
meetings occurred, and some witnesses evidently misattributed statements made in one
meeting to another meeting. The precise meeting dates are not essential to an understanding
of what transpired in the meetings. Although witness accounts of what was said at the meetings
varied, where not specifically attributed, the summaries set forth constitute a reasonable
amalgamation of credible collective testimony.
The first meeting with Bobby Gutierrez, School District superintendent
Following the transmission of the November 26, 2008 letter to the School District, in late
November or early December 2008, 15–17 members of the Committee, including Ms. Silva met
with Bobby Gutierrez (Ms. Gutierrez) to discuss their complaints.
The second meeting with Ms. Gutierrez
On about December 3, 2008,13-15 of the Respondent’s Santa Fe HS employees met
again with Ms. Gutierrez to complain that the Respondent’s supervisors were carrying out
reprisals against the employees, accusing them of stealing things from the school and not doing
their jobs.
The December 3, 2008 management meeting with employees
On December 3, 2008, Mr. Arellano, Mr. Navarette, Mr. Mendez, and Mr. Ferrel met with
about 30 of the Respondent’s employees at the Santa Fe HS cafeteria. According to employee
witnesses, Mr. Ferrel, the primary management speaker, said employees should stop sending
letters to the School District; If they did not, the Company would lose the contract and
employees would lose their jobs.8

8 Although the precise wording varied, employee witnesses Juan Lopez, Ms. Silva,
Ms. Castro, and Juan Sican, all testified that either Mr. Navarette or Mr. Ferrel stated,
essentially, that continued complaining to the School District would result in a loss of the
contract and a consequent loss of jobs.
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According to Mr. Ferrel, at this meeting he told employees the Respondent would raise
their concerns to the School District but could make no demands regarding School District
personnel. Mr. Ferrel pointed out the School District had the right to cancel the contract since
every contract had a termination clause, providing for cancellation for nonperformance or other
issues. Mr. Ferrel asked the employees to bring their concerns to the Respondent.
Mr. Navarette testified that because some of the letters had been misdirected, the managers
gave employees the correct address and asked them to send letters to the company, which
would handle complaints. The Respondent denied telling employees they could lose their jobs
because they were sending letters or that the company could lose its contract because of the
letters.
After the December 3 meeting, by letter dated December 15, 2008, 19 committee
members wrote to Mr. Haas with a copy to Mr. Ferrel, alleging retaliation against committee
members for complaining.9 By letter dated December 31, 2008, 15 committee members wrote
to Mr. Navarette with a copy to Ms. Gutierrez, alleging further retaliation against committee
members for complaining and requesting a meeting with company representatives and
Ms. Gutierrez.
The early January 2009 management meeting with employees
Mr. Arellano, Mr. Navarette, Mr. Ferrel, and Mr. Haas met with about 35 of the
Respondent’s employees at the Santa Fe HS cafeteria. Mr. Ferrel was the primary speaker.
The Respondent told the assembled employees that it had raised their concerns with the School
District, that Pete Ibarra had been suspended pending investigation. According to employee
witnesses, the Company again told employees to stop writing to the School District, as their
continued letter-writing endangered any future contract and their jobs.
According to Mr. Ferrel, he reminded employees that the Respondent, not the School
District, was their employer and that employees could bring their issues to the Company.
Mr. Ferrel provided employees with management-contact names and a toll-free telephone
number, assuring them of confidentiality. Of Ms. Silva, Mr. Ferrel said, “Bianca’s always
aggressive and on the defensive, [a] pusher[;] for a lot of questions asked…to her, she wouldn’t
respond.” At one point, Mr. Haas told her, “I’m trying to talk to you guys and I think I’m being fair
with you guys and I think you’re being disrespectful.”
The June 12, 2009 management meeting with employees
On June 12, Mr. Navarette, Mr. Ferrel, Mr. Mendez, and Mr. Arellano met in the Santa
Fe HS cafeteria with 40–60 of the Respondent’s janitorial employees, including members of the
Committee. According to employee witnesses, either Mr. Navarette or Mr. Ferrel told the
employees that work would end on June 19 because the Company had lost the contract thanks
to a group of employees who had caused problems within the school.10 When some employees
said they were not a part of the group, either Mr. Navarrette or Mr. Ferrel said the Company
knew who was in the group. The Respondent’s representatives said that if they got the contract
again, they would call the employees back to work. Employee witnesses Ms. Castro, Dario

9 The letter also dealt with the desired reinstatement of employees Blanca Ibarra and Carla
Lopez, concerns not at issue herein.
10 Although the precise wording varied, employee witnesses Lilian Lopez, Ms. Silva, Ms. De
Lara, and Mr. Coj testified that either Mr. Navarette or Mr. Ferrel stated, essentially, that
“problem” or “problematic” or “troublemaker” employees had caused the contract loss.
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Chavez, Alma De Lara, and Lilian Lopez testified essentially that the Respondent said only the
sub-pool employees or employees not involved with the Committee would be called back.
Mr. Ferrel denied that either he or anyone else from the Respondent vocally blamed the
Committee for the contract loss at the June 12 meeting. Rather, he testified, noncommittee
employees became upset when they learned the Respondent had no contract for the 2009–
2010 school year and accused Ms. Silva and the committee employees of having caused the
contract loss. Mr. Ferrel said he told employees they could apply to the School District for one
of the school’s few direct-hire janitorial positions.
By letter dated June 16, members of the Committee wrote to Mr. Ferrel, asking him to
clear up the following points:
First point, we were employed the 15th of August of 2008, and we were told that the
contract was for a year. Why then were we told that the 19th of June of 2009 was going
to be the last day of work? We don’t believe that this is just because we are being fired
before having been at work for one year. In this manner, we cannot receive paid
vacation or sick leave. Paid vacation and sick leave were mentioned and assured and
repeated in each meeting because according to you all, your corporation is just to their
employees. We were also promised a raise of salary after three months, and we never
saw that raise of 75 cents. We want to demand our benefits.
Second point. We want to know if there is some kind of problem with Santa Fe High
because Mr. Ferrel only invited the workers of the sub pool to work with the district or in
any other open position, but he excluded the workers of Santa Fe High. He never
mentioned them at all.
Third point. We’re a little confused of why Mr. Oscar Arellano, if he works for Merchants,
has to help the workers of the sub pool with their applications to start working with the
school district.
Fourth point. The date of termination that was given to us the 12th of June was a
surprise. We want to know since when did you know of the date of our last day of work?
Why didn’t you tell us beforehand? And above all, the day before we had been told that
we were only going to rest 15 days to go back to work in the summer.
Sometime after the June 12 meeting, Mr. Arellano proffered one-page documents, which
the employees described as letters of resignation, to certain employees to sign. The following
employees testified of the encounters as follows: Valentin Estrada (Mr. Estrada), said
Mr. Arellano told him he should sign, so he could get work with the Respondent again;
Mr. Estrada refused to sign. At a later time, Mr. Arellano told Mr. Estrada the Respondent would
probably get the contract and they needed 30 workers to work during the school break, but he
would not employ any of the workers who would not sign the resignation letters. David Segovia
also recalled that Mr. Arellano said that he would not reemploy any workers who did not sign the
letter of resignation. Ms. Castro said Mr. Arellano told her the document meant her job had
ended and that she was fired; Ms. Castro refused to sign. Lilian Lopez said Mr. Arellano asked
her and two coworkers to sign the documents, saying it would not cause any trouble for them;
the three refused to sign. Mr. De Lara said Mr. Arellano said the document was a letter of
resignation, but it was okay if employees did not sign because, in any event, they were without
work; Alma de Lara refused to sign, as did Dario Chavez. Mr. Arellano asked Ms. Garcia to sign
a letter of resignation just to finish things right because the contract had ended, and her
resignation would not affect her in any way; Ms. Garcia refused to sign.
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The third employee meeting with Bobbie Gutierrez (June 18)
On June 18, 15 members of the Committee met with Ms. Gutierrez. The employees
asked her to intervene with the Respondent so they could get vacation pay. The employees
also asked for an explanation of why they had been fired and whether they would get a new
contract and be hired back. Ms. Gutierrez said she would do whatever she could to see that
employees got their jobs again.
Sometime after June 18, Mr. Ferrel met with Mr. Romero and Ms. Gutierrez to discuss
the Respondent’s bid for the 2009–2010 contract. The two school district officials told Mr. Ferrel
they had met with employees and Somos, and the group had complained that the Company had
not paid vacation or other monies. Mr. Ferrel explained the Respondent’s vacation policy to the
School District’s apparent satisfaction, but Ms. Gutierrez and Mr. Romero said that if the
Respondent hoped to be considered for the 2009–2010 contract, it would be a lot easier if
everything was settled with Somos and the employees and there were no pending issues for the
new school year. Mr. Ferrel thereafter consulted with the Respondent’s management team
about what could be done to “end on a friendly way.” Because the company “wanted to end
it…wanted [the problems] to go away,” the management team decided to make severance
payments to employees as long as employees signed severance releases.11
Final Paycheck Distribution (June 22)
On June 22, Mr. Arellano distributed final paychecks, individually or in small groups, to a
number of Santa Fe HS and Capitol HS employees in the Santa Fe HS parking lot. The
following employees testified of their interactions with Mr. Arellano as follows: Lilian Lopez said
Mr. Arellano told workers he might get the contract again, and he told those who were not
members of the Committee that he would call them for any future work. Mr. Estrada said
Mr. Arellano said the Respondent would not hire employees who were going around with the
other group.12 Ms. Castro said Mr. Arellano presented her paycheck, then turned to sub-pool
workers in her presence and told them that he would call them back because they were not part
of the trouble-maker group. Dario Chavez said Mr. Arellano gave him a check and said nothing,
but told other employees they would be called back to work because they did not belong to the
group that was causing the problem. Norma Garcia, whose testimony was corroborated by
Alma De Lara, said Mr. Arellano told them that thanks to Somos they wouldn’t have work
anymore. Otto Coj said Mr. Arrellano said he would only call back those who gave no trouble.
Juan Sican said that when Mr. Arrellano gave him his final check, he said in a loud voice to
nearby employees that because of some employee troublemakers the Company had lost the
contract and employees had lost their jobs. He added that if the company was able to regain
the contract in the future, they would call those that were not organized.
On June 22, the following members of the Committee signed a letter and faxed it to
Mr. Ferrel. The letter requested a meeting with Mr. Ferrel and stated in pertinent part:
We also want to clear [up] a comment from Oscar Arellano that [the Respondent] was
firing us because they wanted to get rid of a group of workers that got together recently
for the meeting that we had to resolve some problems in our work…as he was giving
checks to all the workers [Mr. Arellano] was telling them in front of us that he was going

11 Employees entitled to the package were those who began employment at the beginning
of the contract in August or September 2008 and worked full time to the end of the school year.
12It is reasonable to infer that Mr. Arellano meant the Committee.
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to call them to work and that the members of our group, he never told us anything. We
feel that this is a reprisal because we got together as a group to resolve our labor
situation.
Bianca Silva Juan Lopez Lillian Lopez
Norma Garcia Alma de Lara Otto Rene Coj
Juan Sican Dario Chavez David Segovia
Elizabeth Castro Jose Pichardo Diego Ornelas
The Respondent did not answer the letter.
Sometime in early August, pursuant to its decision to give employees a “severance
settlement,” the Respondent offered various 2008–2009 contract employees $800 if the
employee signed the following “Release in Full of All Claims” form (release agreement), which
stated, in pertinent part:
For and in consideration of the sum of [$800] receipt of which is acknowledged, I release
and forever discharge [the Respondent…and the School District] and any and all related
third parties from any and all rights, claims, demands of any kind, known or unknown,
existing or arising in the future and accordingly do hereby expressly, voluntarily,
knowingly and advisedly WAIVE any and all rights granted…I understand that this is all
the money or consideration I will receive from [the Respondent].
Of employees who signed the release agreements, the following testified: According to
Juan Lopez, in August Mr. Navarette said the signed agreements would be given to
Ms. Gutierrez as proof that the Respondent had paid employees their vacation pay, so that the
School District would award them the 2009–2010 contract. Mr. Navarette said that work was
starting on August 14 and that he would call Juan Lopez. Ms. Castro said Mr. Arellano offered
her a check for $800, saying that she had to sign the release form, which was a document she
could show the superintendent that the Respondent had paid vacation; if she did not the
Respondent would not give her the check and would not call her back to work. Mr. Arellano told
Norma Garcia she had to sign the paper to get her vacation check, but she should not worry
because the people who had not caused problems were going to be called back to work, as the
company wanted people who would work and not cause problems. Juan Sican said that when
Mr. Arellano gave him the vacation check, he said he would call the employees to work again.
Lilian Lopez said Mr. Navarrete told her that if she did not sign the release, she would not get
her vacation pay or her job back. Dario Chavez said Mr. Arellano called the $800 check a
“bonus.” Otto Coj testified that Mr. Arellano and Mr. Mendez required that he sign a form before
they gave him a “vacation” check, saying they had to show “the person” that they had given him
a check. The two said there was no commitment as to work.13
The Respondent’s arrangements with Ms. Silva, who had been an alleged victim of Pete
Ibarra’s sexual harassment, were different from the severance settlement. In an attempt to
resolve potential liability, the Respondent had paid Ms. Silva $10,000 in December 2008 with

13 There is no evidence the Respondent made severance/vacation payments to
Mr. Carmona, Blanca Ibarra, David Segovia, Mr. Estrada, Alma De Lara, Mairel Blanco,
Randolfo Campos, Joel Hernandez, Carla Lopez, Joel Lopez, Liliana Lopez, Diego Ornelas, or
Ana Ramirez.
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promise of a later additional $5000.14 On August 6, Mr. Navarette and Ms. Mora presented
Ms. Silva with a document entitled “Agreement and Full Release of All Claims.” According to
Ms. Silva, Mr. Navarette told her that unless she signed the agreement she would not get the
remaining $5000, and when she signed it, they would take it to the School District and be able
to get the contract back. Ms. Silva signed the release and received a check for $5000.15
During early August, the Respondent conducted informal negotiations with the School
District over terms for a 2009–2010 contract. A few days before Mr. Ferrel received official word
that the contract had been awarded to the Respondent, Ms. Silva telephoned Mr. Ferrel and
asked when the Respondent was planning to tell employees that it had gotten the contract.16
Mr. Ferrel said he had heard nothing official, but the Company would “invite” everyone to apply
and asked Ms. Silva to give him the cell phone numbers of the employees. Ms. Silva said she
would make sure that “everybody [was] there.”17
On August 6,18 the employees who had been employed at the Santa Fe HS during the
2008–2009 contract were present in a conference room at Somos when Ms. Silva conducted a
speakerphone conference call with Mr. Navarette. Ms. Silva told Mr. Navarette, “I’m just calling
for you to tell me when we’re going to go back to work.” Mr. Navarette said that either
Mr. Mendez or Mr. Arellano would be calling the employees before the 15th of August.
On August 11, members of the Committee faxed to Mr. Haas and Mr. Arellano a letter
stating, in pertinent part:

14 The Respondent also paid Blanca Ibarra $5000 in compensation for Pete Ibarra’s alleged
conduct.
15 In pertinent part the agreement stated that Bianca Silva “voluntarily release[d]…[the
Respondent] from any and all liability, claims…and damages of any kind…related to [her]
employment with [the Respondent].” The agreement also contained the following sentence: “My
resignation of employment with [the Respondent] was effective on June 19, 2009. I agree not to
seek future employment with [the Respondent.” When Ms. Silva objected to this resignation
language, Ms. Mora crossed it through and added the following: “Blanca Silva is not resigning
her employment with [the Respondent],” which both Ms. Mora and Mr. Navarette initialed.
Ms. Silva signed the agreement with its addendum.
16 It is unclear when this conversation occurred, but it is probable that it took place shortly
before the speakerphone conversation of August 6, described in the next paragraph.
17 Ms. Silva acknowledged that after she learned the Respondent had been awarded the
2009–2010 contract, she telephoned Mr. Navarette and told him she would talk to her
coworkers about returning to work. I do not, however, credit Mr. Ferrel’s testimony that
Ms. Silva told him she would fax him a list of employees with their current telephone numbers.
Although Mr. Ferrel so testified in his initial testimony, he did not repeat the assertion when he
took the stand some weeks later, testifying, as set forth, that Ms. Silva declined to give him the
cell phone numbers of employees, saying he should not worry about that, as she would ensure
“everybody [was] there.” Further, I do not infer from Mr. Ferrel or Ms. Silva’s testimony that
Ms. Silva intended to, or that Mr. Ferrel believed she had, released the Respondent from its
managers’ promises to notify or to “invite” the 2008–2009 employees to apply for the 2009–
2010 contract work, or that, as the Respondent argues, she “assured [the Respondent] that she
would take responsibility for contacting the 08/09 janitors about seeking employment in 09/10.”
18 This date is based on the reference to the conversation in the August 11 letter described
below.
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Firstly, we want to thank you for having promised our job again the 6th of August
because of our good work. We are waiting for your call to go back to work. Mr. Oscar
Arellano had just said the 11th of August that he is not going to give us the contract again
and that he is only going to contact those who had not caused problems, that he wanted
people that wanted to work and not make problems.19 We believe that they never had
any problems or complaints about our work, and this type of comment worries us
because we don’t want any reprisals for having complained in the past about our terms
and condition of our work. We…consider ourselves loyal and good workers. We are still
very worried about some of our coworkers who have not received their paid vacations for
their year of work Please call us to tell us what is going to happen to this.
The Respondent did not respond to the August 11 letter.
C. The 2009–2010 School Year Hiring
During the August 2009–2010 contract discussions between the School District and the
Respondent, it was determined that the contract would provide for 13 janitorial employees for
Santa Fe HS and 10 janitorial employees for Capital HS. Ms. Mora suggested the contract
include a provision requiring SSN verification as a part of prospective employee background
checks.20
In early August in preparation for a possible contract, the Respondent began employee
recruitment, arranging for radio and newspaper employment advertisements and posting help-
wanted notices at the Albuquerque and Santa Fe unemployment offices. On August 18,
Ms. Mora sent Mr. Romero an email informing him as follows:
Merchants Building Maintenance will conduct a criminal background check [as a
condition of employment] for all Santa Fe School District locations. The
background will include the following:
Sex Offender Search
National Criminal Database Search
Social Security Verification
Affirmation of Legal Work Status Acknowledgement
Sometime between early to mid August, the Respondent undertook to verify the Social
Security Number (SSN) of a number of the 2008-2009 employees.21 The Respondent arranged
with a background-check company, Et All Inc. (Et All), to provide SSN verifications for the 2008–
2009 employees. The verification procedure consisted of checking with the SSA that the given

19 No evidence was adduced as to what, if anything, Mr. Arellano may have said to
employees on August 11 about not contacting perceived troublemakers.
20 The Respondent had not verified SSNs of the 2008-2009 employees. Although
Ms. Mora’s testimony vacillated between accepting credit or blaming the School District for the
new 2009–2010 SSN verification procedure, she finally admitted that “[i]t was possibly a
suggestion that I made to them.” Mr. Romero testified that SSN verification was never a School
District condition precedent to the 2009-2010 contract, saying, “it did not make any difference to
me. I needed basically bodies to clean the facilities…if Merchants was going to get the contract
[SSN verification] was their responsibility, not ours.”
21 According to Ms. Mora, the Respondent sought preapplication SSN verifications to save
time in the event former employees applied for employment, but the evidence as to when
verifications were sought is either confusing or inconsistent.
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SSN matched SSA data for name and date of birth. Of the 22 alleged discriminatees, Et All did
not report to the Respondent on the validity of the SSNs of Mr. Carmona, Joel Hernandez,
Blanca Ibarra, and Juan Lopez. Et All reported that the SSNs of Mr. Estrada, Jose Pichardo,
and Bianca Silva were valid. The Respondent submitted into evidence 22 consent-based SSN
verification certifications provided to the Respondent by Et All as follows (names distinguished
by an asterisk are those of alleged discriminatees):
Employee Name Date of Certification22 Result
*Mairel Blanco undated no match
*Randolfo Campos undated no match
*Elizabeth Castro undated no match
*Dario Chavez23 undated invalid number
*Otto Cojo24 undated no match
*Alma Delara undated no match
*Valentin Estrada May 13, 2010 data match
Maria Frech March 26, 2010 data match
Martin Garcia March 26, 2010 data match
*Carla Lopez undated no match
*Joel Lopez February 19, 2010 no match
*Lilian Lopez undated no match
*Liliana Lopez undated no match
*Diego Ornelas undated no match
*Jose Pichardo undated data match
*Anna Ramirez undated no match
Jessica Reynolds March 26, 2010 data match
*David Segovia February 19, 2010 no match
*Juan Sican undated no match
*Blanca Silva undated data match
*Javier Silva undated no match
Juan Silva undated no match
Ms. Mora acknowledged that a name/SSN failure-to-match did not mean the subject
individual did not have a valid SSN but was only an indication the individual should visit a social
security office to resolve inaccuracies. After receiving Et All’s unmatched-SSN notifications, the
Respondent did no further investigation of SSN validity of the subject individuals and did not
notify any individual that a problem with SSN verification existed.
According to the Respondent’s witnesses, sometime between August 13 and 18,
Respondent’s supervisors, including Mr. Mendez and Mr. Arellano, tried to telephone each of
the 2008–2009 employees using telephone numbers from company records to tell them they
could apply for work for the 2009–2010 school year. Mr. Mendez testified that “some” of the
numbers were noncurrent. The Respondent kept no record of the dates or circumstances of
attempted but unsuccessful contacts. No evidence was presented that the Respondent
contacted any former employee except Mr. Estrada, whom Mr. Mendez telephoned less than a

22 Most of the following certifications are undated. Ms. Mora testified that when she sent
bulk requests for verifications, the resultant certifications were undated. Ms. Mora could provide
no explanation as to why six of the certifications were dated several months after August.
23 The SSN given for Dario Chavez was facially invalid.
24 Otto Coj is the accurate name for this employee.
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week before September 3, telling him he could apply for work with the Respondent. Various
2008-2009 employees testified that in August their telephone numbers were unchanged from
the numbers they had provided to the Respondent during their employment, but they never
received a telephone call or any other invitation to return to work under the 2009–2010 contract.
Had they been contacted, they would have applied and worked. The employees included Lilian
Lopez, Alma De Lara, Otto Coj, Ms. Silva, Blanca Ibarra, and Mr. Carmona.
In August, the Respondent accepted employment applications and offered employment
to those who passed the company’s background check, the Respondent’s only employment
criteria. Although the Respondent rehired four former School District employees for the 2009-
2010 school year—two at Santa Fe HS and two at Capital HS—none of the 22 alleged
discriminatees was rehired.25 Mr. Estrada submitted a written application dated September 3 at
the Respondent’s Santa Fe HS office and was told that if the Respondent had vacancies, he
would be called. Mr. Estrada received no call.26 Of the 22 alleged discriminatees, only
Mr. Estrada applied for reemployment.
When classes began in the School District in August, Mr. Carmona27 spoke with
Mr. Arellano by telephone. Mr. Arellano told Mr. Carmona that because he had worked with the
group of troublemakers, he would not be able to return to work. Blanca Ibarra did not apply for
work because Mr. Arellano had said he would call employees. Blanca Ibarra telephoned
Mr. Arellano and left messages, but Mr. Arellano never returned her calls.
D. Credibility
The Respondent presented testimony from Mr. Ferrel and Mr. Navarette that allegedly
bears on the credibility of employee witnesses. Mr. Ferrel testified that during the hearing in
May while waiting outside the hearing room, he overheard a man he believed to be David
Segovia say, “What am I doing here? I am wasting my time. You guys said this was going to be
over in a day.”
The man to whom the presumed-David Segovia spoke replied, “Let’s stick together; we
came this far, let’s stick to the story. Let’s just say what we have.”28 Mr. Ferrel acknowledged
that he did not hear anyone talk about truthfulness or untruthfulness.
Mr. Navarette testified that during the hearing in May while waiting outside the hearing
room, he overheard some unidentified persons say they didn’t want to lie; they didn’t want to
fool anyone. Mr. Navarette then overheard someone say that nobody could back out, that they
had to “take it down to the last consequences of this.”

25 The four included Juan Hernandez, formerly employed at Santa Fe HS and Jose Queliz
and Biden Sican, formerly employed at Capital HS.
26 The Respondent never explained why, although vacancies later occurred, it never called
Mr. Estrada. The Respondent also did not explain why Mr. Estrada’s SSN verification
certification was dated May 13, 2010, long after Mr. Mendez’ phone call and Mr. Estrada's
application.
27 Although Axel Carmona did not sign any committee letters, he supported the Committee
and attended committee meetings.
28 Mr. Ferrel initially testified that an unnamed man said, “Let’s stick to the story.” When
further pressed, he said he believed the speaker was Ms. Silva and another lady, who said,
“Let’s just stick to the story, let’s just stay here, we came this far, just stick to your story.”
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The Respondent asks me to infer from Mr. Ferrel and Mr. Navarette’s accounts that at
least some of the employee witnesses conspired to give false testimony and/or that some
employee witnesses urged others to stick to false testimony. Mr. Ferrel and Mr. Navarette’s
testimonies in this regard are vague and lack context, which prevents me from drawing the
requested inference. Further, no reasonable construction of the overheard statements shows
any intent to give false testimony. The most suspicious statement—“let’s stick to the story”—is
just as susceptible of an innocent inference (let’s stick to the [truthful] story) as it is to a guilty
one (let’s stick to the [false] story). I cannot, therefore, infer from Mr. Ferrel and Mr. Navarette’s
testimonies that any employee witness testimony was incredible.
As to statements made in the early December 2008 and early January management
meetings with employees, employee witnesses ascribed to Mr. Ferrel threats that if employees
did not stop sending letters to the School District, the Company would lose the contract and
employees would lose their jobs. Mr. Ferrel, in contrast, said he merely pointed out that the
School District had the right to cancel the contract, implying that it might do so if beleaguered by
complaints, and asked employees to bring their concerns directly to the Respondent. None of
the employee witnesses provided comprehensive testimony of what was said at the meetings.
Rather, they testified to conclusionary summaries of what was allegedly said. It is impossible to
determine whether the employees’ testimonies are clear recollections of what was said or
whether they reflect inferences perhaps unwarrantedly drawn. Therefore, as to the early
December 2008 and early January management meetings, I credit Mr. Ferrel’s testimony, which
I found to be detailed and straightforward. I cannot, therefore, find that management did other
than encourage employees to direct their complaints to the Respondent.29
Regarding the June 12 management meeting with employees, employee witnesses
testified that either Mr. Navarette or Mr. Ferrel told employees the company had lost the
contract thanks to a group of employees who had caused problems within the school and that
the company would not recall employee-members of the Committee if it procured a future
contract. Mr. Ferrel denied any manager blamed the Committee for the contract loss, ascribing
such accusations to other employees. In determining which account to credit, I note that in the
June 16 letter to Mr. Ferrel, the Committee addressed a number of concerns generated by the
June 12 meeting, including vacation pay, sick leave, a promised raise, and exclusion of the
Santa Fe HS employees from an invitation to apply for School District work. The letter said
nothing about management blaming Committee members for the contract loss or threatening a
refusal to recall. Had the employee-witnesses believed management had made any such
statements during the June 12 meeting, it is reasonable to expect they would have detailed both
the accusation and the threat in the June 16 letter. Since the letter fails to corroborate
employee testimony, I credit Mr. Ferrel’s account of what was said at the June 12 meeting.

29 The General Counsel has not alleged managerial statements made in the December
2008 and January meetings to be violations of the Act. The statements are addressed here as
they bear on the Respondent’s alleged animosity toward employees’ protected activities.
Although in the meetings the Respondent expressed a clear preference that employees
communicate with the company rather than the School District, based on the credited testimony
I cannot find that the Respondent threatened employees or otherwise demonstrated animosity.
See Buck Brown Contracting Co. Inc., 283 NLRB 488 (1987) (statement of possible third-party
action that did not intimate the employer would forfeit its contract as punishment for its
employees' protected activities is statement of opinion, not threat of reprisal, and is protected by
Sec. 8(c) of the Act.
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During the final paycheck distribution on June 22, according to employee witnesses,
Mr. Arellano told workers, essentially, that he would not call problem or troublemaking
Committee members or supportive employees for any future work. I found the employee
witnesses who testified to Mr. Arellano’s June 22 statements to be clear, specific, and
consistent in their recall. Moreover, on that same day, the Committee faxed a letter to
Mr. Ferrel in which they accused Mr. Arellano of telling employees the company wanted to rid
itself of workers who had tried to resolve work problems and of telling non-committee
employees, to the exclusion of committee employees and supporters, that he would recall them
to work. The contemporaneous committee letter to the Respondent is essentially consistent with
employee testimony; accordingly, where Mr. Arellano’s testimony differs with that of employee
witnesses as to his June 22 statements, I credit the employee witnesses.
With regard to the attempted recall of 2008-2009 employees, I cannot credit
Respondent-witnesses’ testimony that in August company supervisors including Mr. Mendez
and Ms. Carrillo attempted to contact former 2008–2009 employees to invite them to apply for
work. Mr. Mendez, who testified that he and Ms. Carrillo telephoned former employees, testified
not only vaguely but appeared hesitant to answer some questions:
Q …you tried to call all the employees [from the previous school year]?
A Correct.
Q …How did you keep track of the people that you called?
A We [kept] track, with you know, we have a list in those timesheets…with their names and
everything, but…we no have current phone numbers, so we can’t reach everybody.
Q Okay. So did you mark on this list that you couldn’t reach –-
A Not really checkmark, but you know, we call[ed] everybody.
…
Judge: You didn’t make a checkmark or a notation that you left a message to call –-
A Not really.
Judge: –- or anything like that?
A Not really.
Judge: Not really. What does not really mean?
A Well, no.
The Respondent was unable to provide any record whatsoever of any employee contact
attempts. The lack of any documentation, in a situation where documentation could reasonably
be expected, reflects badly on the credibility of Mr. Mendez. Further, Respondent-witnesses
testified the Company was unable to contact any of the former employees, an assertion that is
so inherently improbable as to be not only unbelievable but to cast doubt on related testimony.
Finally, unrefuted evidence was presented that many of the 2008–2009 employees had, during
their employment, furnished the Respondent with telephone numbers that were still in service in
August, but those employees were never contacted by Respondent about 2009–2010 work.
Moreover, the evidence was confused and inconsistent as to why and when the Respondent
sought SSN verifications of the 2008–2009 employees. Accordingly, I find no credible evidence
the Respondent attempted to notify any of the 2008–2009 employees, except Mr. Estrada, that
work was available under the 2009–2010 contract.
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V. DISCUSSION
A. Employees’ Concerted Protected Activity
Section 7 of the Act provides that employees have the right to engage in concerted
protected activities. Section 8(a)(1) of the Act makes it unlawful for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
There is no dispute that employees who signed the various 2008 and 2009 letters or
who otherwise supported the activities of the Committee were engaged in the concerted
protected activity of protesting work-related issues to the Respondent. The complaint alleges
that in response to that protected activity, the Respondent engaged in unlawful conduct as
discussed below.
B. June 12 (Alleged Threats and Impression of Surveillance)
The complaint alleges that through Mr. Ferrel and Mr. Navarette, the Respondent
threatened employees and created an impression of surveillance on June 12. The credible
evidence shows that on June 12, during a management meeting with employees, noncommittee
employees accused committee members of having caused the Respondent to lose its contract
with the School District. There is no credible evidence that any representative of the
Respondent made such accusations or adopted employee accusations or otherwise threatened
employees. There is no evidence any representative of the Respondent created an impression
of surveillance. I shall therefore dismiss allegations of the complaint relating to unlawful conduct
on June 12.
C. Sometime in June (Resignation Solicitations)
The complaint alleges that sometime in June by Mr. Arellano’s solicitation of
resignations, the Respondent threatened employees with discharge because they had engaged
in concerted activities. There is no dispute that the School District terminated the 2008-2009
contract in June. The evidence showed that thereafter, sometime after the June 12 meeting,
Mr. Arellano sought to have employees sign resignations. Although Mr. Arellano told
employees, variously, that they had to sign the resignation in order to procure work again, he
also said the resignation meant the job had ended, which in fact it had, and that the resignation
was “just to finish things right” because the contract had ended. He told other employees the
resignation would not affect them in any way but whether or not employees signed, they were
without work. There is no evidence the solicitations were prompted by invidious considerations
or were discriminatorily limited to employees who had engaged in concerted protected activities.
In these circumstances, the resignation solicitations did not constitute interference, restraint, or
coercion. I shall therefore dismiss allegations of the complaint relating to the solicitation of
resignations.
D. June 22 (Threats of Refusal to Rehire)
The complaint alleges that on June 22 through Mr. Arellano, the Respondent threatened
employees by telling them they would not be rehired for the following school year because they
had engaged in concerted protected activities. I have credited employee testimony that on
June 22, while distributing final paychecks, Mr. Arellano threatened employees by variously
stating or implying that he would not call those who had engaged in concerted protected
activities for any future work but would only call back those who gave no trouble or were not
organized. Mr. Arrellano also told employees that because of some employee troublemakers
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the Company had lost the contract and employees had lost their jobs. Mr. Arellano’s statements
were declarations of animosity toward employees’ protected activities and threats of reprisal that
could be expected to interfere, restrain, or coerce employees in the exercise of their Section 7
rights. Accordingly I find that Mr. Arellano’s June 22 statements to employees violated Section
8(a)(1) of the Act.
E. August (Statement to Axel Carmona)
Sometime in August after the 2009-2010 school year began, Mr. Arellano told Axel
Carmona that because he had worked with the group of troublemakers, he would not be able to
return to work. Mr. Arellano’s assertion of discriminatory motive in refusing to rehire Alex
Carmona violated Section 8(a)(1) of the Act.
F. Refusal to Pay Accrued Vacation Pay
The complaint alleges that since August 3, the Respondent has refused to pay its
employees accrued vacation pay. Prior to commencing work on the 2008-2009 contract,
Mr. Ferrell explained to the 2008–2009 employees that they were not entitled to vacation pay.
Although employees apparently thought they were entitled to vacation pay and referred to the
August “severance” settlements as “vacation pay,” no evidence was presented that such a
benefit existed for employees who worked less than a full year (12 months). The Respondent’s
employees at the School District did not work a full 12 months and were not entitled to vacation
pay. I shall therefore dismiss allegations of the complaint relating to any refusal to pay accrued
vacation benefits.
G. Refusal to consider for rehire and/or to rehire Employees
The Board set forth its analytical framework for determining whether an employer
violates the Act by failing or refusing to consider or hire job applicants because of their protected
activities in FES.30 The FES burdens of proof are based on those established in Wright Line31
for all cases alleging violations of Section 8(a)(1) turning on employer motivation. Under the
Wright Line allocation of burdens, the General Counsel must first show, in pertinent part, the
following: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the
alleged unlawful conduct; (2) that the applicants had experience or training relevant to the
announced or generally known requirements of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for discrimination; and (3) that animus
toward protected activity contributed to the decision not to hire the applicants. Once the General
Counsel establishes these elements by a preponderance of the evidence, the burden shifts to
the respondent to show that it would have taken the same action even in the absence of
protected activity. If the General Counsel meets the burden and the respondent fails to show
that it would have made the same hiring decisions even in the absence of concerted protected
activity, then a violation of Section 8(a)(1) has been established.

30 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir.
2002).
31 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
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The General Counsel alleges that the Respondent discriminatorily failed and refused to
hire the following 22 employees for the 2009–2010 school year because the employees
engaged in protected activities and/or to discourage other employees from engaging in
protected activities. I also consider whether the Respondent discriminatorily failed and refused
to consider the same employees for rehire:32
Mairel Blanco33 Joel Lopez
Randolfo Campos34 Juan Lopez
Axel Carmona Lilian Lopez
Elizabeth Castro Liliana Lopez
Dario Chavez Diego Ornelas35
Otto Rene Coj Jose Pichardo
Alma DeLara Ana Ramirez
Valentin Estrada David Segovia
Joel Hernandez36 Juan Sican
Blanca Ibarra Bianca (or Blanca) Silva
Carla Lopez37 Javier Silva38

32 Although the complaint does not allege the Respondent violated the Act by refusing to
consider employees for rehire, the General Counsel in his post-hearing brief requests such a
finding. I may address the matter even if no allegation exists, if the issue has been fully and
fairly litigated. Kenmor Electric Company, Inc. et al., 355 NLRB No. 173, slip op. 7 (2010), citing
Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990) (“Board
may find and remedy unfair labor practice not specifically alleged in the complaint if issue is
closely connected to the subject matter of the complaint and has been fully litigated.”) See also
Letter Carriers Local 3825, 333 NLRB 343 fn. 3 (2001); Parts Depot 332 NLRB 733, fn 5 (2000).
The refusal-to-consider and refusal-to-rehire issues rest on the same evidence and have been
fully and fairly litigated. Therefore, I include refusal to consider in the discussion of violations
herein.
33 The Respondent stated that its employment records show Mairel Blanco’s last check was
dated April 2, 2009. Respondent did not explain why, if Mairel Blanco was not employed in
June, it sought SSN verification for that employee in August.
34 The Respondent contends that Randolfo Campos was not employed at any time material
to the issues herein. Respondent did not explain why, if Randolfo Campos was not employed in
June, it sought SSN verification for that employee in August.
35 When the hearing commenced in May 2010, Jose Pichardo and Diego Ornelas were
present at the hearing site and available to give testimony. Upon the hearing’s resumption in
August 2010, Counsel for the General Counsel stated that he was no longer able to locate the
two alleged discriminatees.
36 The Respondent contends it never employed Joel Hernandez. The Respondent did not
seek SSN verification for that individual.
37 The Respondent said its employment records show Carla Lopez’ last check was dated
September 24, 2008. Respondent did not explain why, if Carla Lopez was not employed in
June, it sought SSN verification for that employee in August.
38 According to the Respondent’s witnesses, sometime in January, following an altercation
with his supervisor, Javier Silva did not return to work. Respondent did not explain why, if
Javier Silva was not employed in June, it sought SSN verification for that employee in August.
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All of the above employees except Mr. Carmona, Mr. Estrada, Blanca Ibarra, and Joel
Hernandez signed the November 25 and/or June 22 letters. The Respondent does not dispute
that participation in generating and tendering the letters constituted concerted protected activity,
However, the Respondent argues that the General Counsel must prove that each alleged
discriminatee engaged in the protected activity, which, the Respondent asserts, the General
Counsel has not done. Under the Board’s test in Wright Line, where employer action against
employees is based on protected group activity known to the employer, the General Counsel is
not required to prove specific individual employee engagement in the protected concerted
activity. St. John's Community Services—New Jersey, 355 NLRB No. 70 fn. 3 (2010).39 As for
those employees who did not sign the letters, the following evidence was adduced: Mr. Arellano
directly told Mr. Carmona that he could not work for the Respondent because of his association
with the Committee. Mr. Estrada was actively involved with the Committee; he submitted a
written application for employment dated September 3 to the Respondent at the Respondent’s
Santa Fe HS office, to which the Respondent inexplicably did not respond. It is reasonable to
infer from the Respondent’s silence that it was aware of, or suspected, Mr. Estrada’s committee
sympathies. Blanca Ibarra was known to the Respondent to be an alleged victim of Pete Ibarra
and therefore significantly involved with employees’ protected protest. As for Joel Hernandez,
the General Counsel has provided no evidence that the Respondent ever employed any
individual by that name at the School District.40
The evidence establishing the first FES element that the General Counsel must prove is
undisputed: in August, as soon as the Respondent learned it had obtained the School District
contract, the Respondent set about hiring 23 janitorial employees to meet contract
requirements. The Respondent was, therefore, hiring at the time of the alleged unlawful
conduct.
As to the second element, although it is clear that all of the Respondent’s 2008-2009
employees, into which category the alleged discriminatees fell, had the necessary experience or
training for the job openings, the Respondent contends that none of the discriminatees applied
for work, thereby not meeting the job requirement that former employees had to reapply.41 As
to this contention, the evidence is clear that the Respondent repeatedly promised former
employees it would notify them if and when work under a 2009–2010 contract came available.
Just days before work at the School District resumed under the 2009–2010 contract, Mr. Ferrel
assured Ms. Silva the Company would “invite” everyone to apply. Later, in a speakerphone call
with numerous former employees, Mr. Navarette said that either Mr. Mendez or Mr. Arellano
would be calling the employees before August 15. I have found no credible evidence that the
Respondent attempted to notify any of the 2008–2009 employees, except Mr. Estrada, of

39 The Respondent also argues that activity instigated by supervisors (i.e. Ms. Silva and
Ms. Castro) does not warrant Sec. 7 protection. The Respondent provides no legal support for
this proposition. In any event, there is no evidence Ms. Castro was a supervisor within the
meaning of the Act at any material time, and Ms. Silva’s supervisory status ended in December
2008. She was, therefore, an employee within the meaning of the Act at the time of the
Respondent’s unfair labor practices.
40 While a job applicant is an “employee” under Sec. 2(3) of the Act. Phelps
Dodge Corp. v. NLRB, 313 U.S. 177 (1941), no evidence was adduced that Joel
Hernandez ever applied for employment with the Respondent.
41 There is no evidence that reapplying was not a valid prerequisite of employment. Cf.
Smoke House Restaurant, 347 NLRB 192, 195 (2008). (Where an employer imposes a
consistently applied condition of employment, the General Counsel then has the burden to
demonstrate that alleged discriminatees met that requirement).
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available work under the 2009–2010 contract, and Mr. Estrada was never employed.
Consequently, I infer that neither the promised invitation to apply nor the promised work-
notification was ever communicated to the former employees or that the Respondent had any
intention of hiring any of them had they applied. The Board does not require actual application
when applying would be futile.42 Here, not only would application be demonstrably futile, as
evidenced by the Respondent’s failure to respond to Mr. Estrada’s application, any failure to
apply must be attributed to the Respondent’s misleading assurances. Employees who relied
upon the assurances cannot be penalized for their misplaced trust. I find, therefore, the General
Counsel has met his burden as to the second element.
As to the third element—that animus toward protected activity contributed to the decision
not to consider for hire or to hire the applicants—I have already found the Respondent attributed
the contract loss to complaining employees and threatened employees they would not be
rehired for the following school year because they had engaged in concerted activities. The
attribution and the threats are compelling evidence of the Respondent’s animosity toward
employees’ protected activities and its intent to effect reprisals. Further, the attribution and the
threats directly link the employees' protected conduct with the Respondent's failure to contact
them about work availability or to offer them reemployment. Accordingly I find the General
Counsel has met all three elements of his burden under FES, and the burden consequently
shifts to the Respondent to show it would have taken the same action even in the absence of
protected activity.
Employees employed by the Respondent as of June 12 when the Respondent notified
employees that its contract with the School District had ended were entitled to be considered for
hire and to be rehired. The Respondent neither rehired any of the discriminatees nor
considered them for hire. For the reasons set forth above, the Respondent has not
demonstrated that it would have taken the same action in the absence of the alleged
discriminatees’ protected activity. I must, therefore, conclude that Respondent has not met its
burden under FES and that it violated Section 8(a)(3) and (1) by refusing to consider for hire
and refusing to hire the following employees, employed as of June 12:
Mairel Blanco Juan Lopez
Randolfo Campos Lilian Lopez
Axel Carmona Liliana Lopez
Elizabeth Castro Diego Ornelas
Dario Chavez Jose Pichardo
Otto Rene Coj Ana Ramirez
Alma DeLara David Segovia
Valentin Estrada Juan Sican
Blanca Ibarra Bianca (or Blanca) Silva
Carla Lopez Javier Silva43
Joel Lopez

42 In Re Corporate Interiors, Inc., 340 NLRB 732, 750 (2003).
43 I do not find that Joel Hernandez was a discriminatee herein. The General Counsel has
not met his burden of showing that Joel Hernandez was ever the Respondent’s employee or job
applicant. However, in light of the Respondent’s August SSN verifications, the evidence is not
clear as to whether Mairel Blanco, Randolfo Campos, Carla Lopez, and Javier Silva were or
were not employed by the Respondent on June 12. The Respondent may proffer additional
evidence as to their employment status during any future compliance proceedings.
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Conclusions of Law
1. Merchants Building Maintenance, LLC is and has been at all times material an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Merchants Building Maintenance, LLC violated Section 8(a)(1) of the Act by:
(a) threatening employees with adverse consequences, including refusal to rehire,
because they engaged in concerted protected activities.
(b) failing and refusing to consider for hire or to hire the following former employees
because they engaged in concerted protected activities:
Mairel Blanco Joel Lopez
Randolfo Campos Juan Lopez
Axel Carmona Lilian Lopez
Elizabeth Castro Liliana Lopez
Dario Chavez Diego Ornelas
Otto Rene Coj Jose Pichardo
Alma DeLara Ana Ramirez
Valentin Estrada David Segovia
Blanca Ibarra Juan Sican
Carla Lopez Bianca (or Blanca) Silva
Javier Silva
3. The unfair labor practices set forth above affect commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found the Respondent has engaged in certain unfair labor practices, I find it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having unlawfully refused to consider for hire or to hire the above-
named former employees, it must offer them immediate and full instatement to the positions for
which they would have applied had application opportunities been made available or, if those
positions no longer exist, to substantially equivalent positions. Respondent must also make
them whole for any loss of earnings and other benefits, computed on a quarterly basis from date
of refusal to hire to date of proper offer of instatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest compounded on a daily
basis, as prescribed by Kentucky River Medical Center, 356 NLRB No. 8 (2010).44
Citing Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.137 (2002), and Domsey
Trading Corp., 351 NLRB 824 (2007).The Respondent argues that if any of the alleged
discriminatees cannot be legally employed in the United States, no remedy should be provided
for them. The Respondent failed to show that the discriminatees were undocumented workers
or that the Respondent refused to rehire them for that reason. Many of the alleged
discriminatees’ SSNs did not, apparently, match the names given to the Respondent. However,

44 When, as here, both refusal-to-hire and refusal-to-consider violations are found regarding
the same applicants, “the refusal-to-consider violation is subsumed by the broader refusal-to
hire remedy.” Jobsite Staffing and Jobsite Personnel, Inc., 340 NLRB 332, 333 (2003).
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the mismatches may reflect nothing more than name-inaccuracies. The Respondent's
evidence, at most, shows the employees provided inaccurate SSNs for some reason. If the
Respondent has evidence bearing on discriminatees’ immigration status that was unavailable at
the time of its unfair labor practices, the Respondent may argue, under the holding of Hoffman
Plastics, 535 U.S. 137 (2002), that it should not be precluded from introducing such additional
evidence at any compliance stage for the limited purpose of reducing its backpay liability. See
Concrete Form Walls, Inc., 346 NLRB 831 (2006).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended45
ORDER
The Respondent, Merchants Building Maintenance, LLC, Santa Fe, New Mexico, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with adverse consequences, including refusal to
rehire, because they engaged in concerted protected activities.
(b) Failing and refusing to consider for hire or to hire former employees on the
basis of their concerted protected activities.
(c) 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 action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, insofar as it has not already done so,
offer each of the following former employees instatement to the positions for which
they would have applied had application opportunities been made available or, if
those positions no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges, or, if such is
impracticable, otherwise institute such remedial relief as determined appropriate at
the compliance stage of the proceeding:
Mairel Blanco Joel Lopez
Randolfo Campos Juan Lopez
Axel Carmona Lilian Lopez
Elizabeth Castro Liliana Lopez
Dario Chavez Diego Ornelas
Otto Rene Coj Jose Pichardo
Alma DeLara Ana Ramirez
Valentin Estrada David Segovia

45 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.
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Blanca Ibarra Juan Sican
Carla Lopez Bianca (or Blanca) Silva
Javier Silva
(b) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful refusal to hire the former employees named in paragraph 2(a) above and
within 3 days thereafter notify them in writing that this has been done and that the
refusal to hire them or to consider them for hire will not be used against them in any
way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of back pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its office in Santa Fe, New
Mexico, copies of the attached notice marked “Appendix”46 in English and in
Spanish. Copies of the notice, on forms provided by the Regional Director for Region
28 after being signed by Respondent's authorized representative, shall be posted by
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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during
the pendency of these proceedings, Respondent has gone out of business or closed
the operations involved in these proceedings, Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees and former
employees employed by Respondent at any time since June 2009.
(e) 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 Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, at Washington, DC:
Lana H. Parke
Administrative Law Judge

46 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT fail and refuse to consider for hire or to hire former employees because they
engaged in concerted protected activities.
WE WILL NOT threaten employees with refusal to rehire because they engaged in concerted
protected activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.
WE WILL offer each of the following former employees instatement to the positions for which
they would have applied had application opportunities been made available or, if those positions
no longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges:
Mairel Blanco Joel Lopez
Randolfo Campos Juan Lopez
Axel Carmona Lilian Lopez
Elizabeth Castro Liliana Lopez
Dario Chavez Diego Ornelas
Otto Rene Coj Jose Pichardo
Alma DeLara Ana Ramirez
Valentin Estrada David Segovia
Blanca Ibarra Juan Sican
Carla Lopez Bianca (or Blanca) Silva
Javier Silva
WE WILL make the former employees named above whole for any loss of earnings and other
benefits suffered as a result of our unlawful refusal to rehire them.
WE WILL remove from our files any reference to our unlawful refusal to hire the former
employees named above and WE WILL, within 3 days thereafter, notify them in writing that this
has been done and that the refusal to hire them or to consider them for hire will not be used
against them in any way.
MERCHANTS BUILDING MAINTENANCE LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (602) 640-2146.