M&T Engineering and Construction LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 26, 2019

14-CA-240972 (N.L.R.B. Nov. 26, 2019)

JD–90–19
Overland Park, KS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
M&T ENGINEERING AND CONSTRUCTION LLC,
and Cases 14-CA-240972
14-CA-241119
DONNIE SCRUGGS, an Individual 14-CA-241121
14-CA-241333
and
CONRAD MONACO, an Individual,
and
BRYAN SCRUGGS, an Individual,
and
SCOTT CHANEY, an Individual.
Julie Covel, Esq., for the General Counsel
Benny J. Harding, Esq., Leawood, KS, for the Respondent
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Overland Park,
Kansas on October 2-4, 2019. The complaint alleges that the Respondent, M&T Engineering
and Construction LLC, violated Sections 8(a)(1) of the National Labor Relations Act (the Act)1
in April 20192 by threatening, interrogating, coercing and subsequently discharging the charging
parties, Donald Scruggs, Conrad Monaco, Bryan Scruggs and Scott Chaney, because they
discussed wages, hours and working conditions with each other. The Respondent denies the
allegations and contends that Donald Scruggs, Bryan Scruggs and Monaco were discharged
because of deficient performance after their first and only day of work. In Chaney’s case, the
Respondent denies that he was discharged.

1 29 U.S.C. Sections 151-169.
2 All dates refer to 2019 unless otherwise stated.
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2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent,3 I make the following
FINDINGS OF FACT
5
I. JURISDICTION
The Respondent, a limited liability company with an office and place of business in
Overland Park, Kansas, is a contractor in the construction industry performing bricklaying services
valued in excess of $50,000 in states other than Kansas. The Respondent admits, and I find, that 10
it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
15
A. The Kansas City Zoo Subcontract
The Respondent is owned by a married couple, Tannaz (Tania) Tavakkoli and Majid
(Max) Nowrouzi. Both are registered professional engineers with graduate degrees in civil
engineering. Tavakkoli serves as president and manages the administrative functions of the 20
business. Her responsibilities include bidding for contracts, processing invoices and handling
payroll with the assistance of a part-time accountant. Nowrouzi, as the vice president, manages
construction operations. Kenneth Burch is employed as an estimator and project manager. All
are statutory supervisors within the meaning of Section 2(11) of the Act and agents within the
meaning of Section 2(13) of the Act.25

The Kansas City Zoo project was the Respondent’s first job. The Respondent was
awarded a subcontract by the general contractor, Centric. The subcontract was to be performed
in several intervals and was to be compensated at prevailing wage rates in effect for Jackson
County, Missouri. The job required the Respondent to employ bricklayers, laborers and 30
operators. The prevailing wage rates were $55.16 for bricklayers, $44.60 per hour for laborers
and $40-42 per hour for operators.

The first phase was for the Respondent to lay the foundational blocks and then take a
one-week break for the installation of plumbing. The bricklayers, also referred to as masons,35
were to lay the bricks; laborers were to pour the grout.
B. Respondent Hires the Charging Parties
After being awarded the contract, the Respondent recruited through online 40
advertisements. After brief interviews, Nowrouzi hired five employees. He hired Donald
(Donnie) Scruggs as a bricklayer, or mason, and entrusted him to run the crew as a working
foreman. Donald Scruggs was provided with a set of the blueprints, and assured Nowrouzi that
he could read them and was familiar with industry standards for rebar reinforcement. During his

3 On April 12, over the General Counsel’s objection, I granted the Respondent’s motion for leave to
file its brief three days late. I did, however, grant the General Counsel one week to file a reply brief.
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3
interview with Nowrouzi, Donald Scruggs was told that the Company bid was for each employee
to install 160-180 blocks per man per day and that he would run the crew. He was told the crew
would consist of five masons and three laborers on the crew. He also informed Donald Scruggs,
as the foreman, that any overtime required office approval. Additionally, Donald Scruggs was to
be compensated for attending preconstruction meetings.5
Donald Scruggs did not have the required OSHA 10-card certification for a foreman, but
Burch told him that he would be reimbursed. Donald Scruggs obtained the certification prior to
the start of work and was reimbursed.
10
Bryan Scruggs and Monaco were also hired as bricklayers. Chaney was hired as a
laborer and Anthony Riley was hired as an operator/laborer. During their respective interviews,
Burch explained to each employee that it was a prevailing wage job, would last approximately
six weeks and the ground rules, including the work hours. He explained that they would be paid
for actual work time, not including commuting or shuttling to the work site. Burch also informed 15
the employees that the start times, depending on the general contractor, would be either 7:30 a.m.
to 4:00 p.m. or 8:00 a.m. to 4:30 p.m. 4
C. The Initial Preparation
20
On Monday, April 1, Nowrouzi text messaged Donald Scruggs to be at the site “on April
3rd no later than 7:45 a.m.” On April 2, Nowrouzi sent Donald Scruggs the location where they
were to meet and pictures showing that the concrete foundation had not yet been poured.
Nowrouzi said that the concrete would be poured on April 4 and that there would be a meeting
about that on April 3 “and you should join we will call you shortly.” Nowrouzi followed up later 25
with a text message to be there “[t]omorrow 7:45 at the jobsite.” Donald Scruggs asked, “Ok, is
it just me or are you going to be there also?” Nowrouzi replied, “I’ll be there at 7:45[.] I’ll bring
a laborer and probably the operator (I’ve forgotten his name). I’ll talk to Ken about the
operator[.] Don’t forget your hard hat[.] You will have a meeting at 2:00.”
30
At 7:00 a.m. on April 3, Nowrouzi text messaged Donald Scruggs: “Good morning
Donnie Benjamin just said he is not able to join[.] Do you have anyone in your mind to join
today as operator? Donald Scruggs told Nowrouzi that Bryan Scruggs was “coming down,”
adding that he had been on the job since 7:00 a.m. Nowrouzi replied, “[g]reat, I’m on my way[.]
Have you received the block?” Donald Scruggs answered in the affirmative.535
At 3:40 p.m., Donald Scruggs notified Nowrouzi that he “[j]ust finished on job with
meeting.” Nowrouzi thanked him for the update. At 4:45 p.m., Donald Scruggs informed
Nowrouzi about his plans to start laying blocks the following day:
40

4 Burch’s credible testimony regarding his statements to employees during the hiring process was not
disputed. (Tr. 430-35, 450-55.)
5 Notwithstanding Burch’s instructions, Nowrouzi authorized Donald and Bryan Scruggs to work on
April 3. Moreover, the testimony of Burch and Riley that the latter was present, but Donald Scruggs was
not, when the rebar was delivered on April 3 was effectively refuted by Donald Scruggs’ reply to
Nowrouzi’s text message at 7:00 a.m. that he was already at the site and the rebar had been delivered.
(GC Exh. 5 at 1-2; Tr. 427-29, 496.)
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4
I think we can plan on working but if it is raining hard then no. I told Conrad plan on 10
am, I will tell Bryan to come in depending on weather. I will need Tony and a driver for
laborer. You prob need a respirator for the guy who mixes mud. First day ok without but
will need when they are mixing.
5
Nowrouzi replied by asking if Donald Scruggs was referring to Thursday or Friday.
After Donald Scruggs said that he was referring to Thursday, April 3, Nowrouzi asked if “at least
the 3-sides of the footing ready?” Donald Scruggs replied that “[a]ll footings are done they were
pouring the end I’d (sic) building as I left, so let’s go for it tomorrow and hope it don’t rain.”
Nowrouzi asked “[w]hat time do you need your bricklayers? 10?” Donald Scruggs replied that 10
he “told Conrad to come in at 10 and Bryan at 7 that’s (sic) is all we will need for bricklayers.”
Nowrouzi said “Ok, Anthony and Donnie Lock will join too.” Donald Scruggs replied,
“perfect.” Nowrouzi then asked, “It’s 170 for the first course. You finish it tomorrow. Right?”
Donald Scruggs replied, “That is the plan. Layout takes more time, Nowrouzi replied,
“Anthony will be there early morning. Do you want Locke to be there at 10?” Scruggs replied, 15
“I would like [Lock] there early also to get the mud made the mixer lined up all that. I need to
get the silo filled and all that stuff. Nowrouzi said, “good” and Scruggs asked if he could put the
“Lazer on the Charger so it is charged for the morning.?” Nowrouzi replied, “will do.”6
Donald Scruggs, Bryan Scruggs and Riley reported to the site on April 4 at 7:00 a.m. A 20
truck delivered the rebar at about 8:30 a.m. Donald Scruggs left the site at 9:00 a.m.7 In the
meantime, Nowrouzi texted Burch that “[w]e are short in mason and labor[.] Diego, Donnie
Locke and Benji are already with another company.”8 At 1:26 p.m., Donald Scruggs reported his
work hours to Nowrouzi: “8 hrs, Wed, 2 Hrs today.” Nowrouzi replied, “Ok Thanks.” Scruggs
also reported to Nowrouzi by telephone that the rebar had been delivered and was being 25
unloaded by Bryan Scruggs and Riley. He also told Nowrouzi that he discussed the project
layout with the project superintendent and how the job was going to proceed. He informed
Nowrouzi that would be leaving the job site to pick up his girlfriend at the airport. Nowrouzi did
not express any concern to Donald Scruggs about the time that he left the job site.9

6 Nowrouzi characterized his relationship with Donald Scruggs as “awful.” With respect to the period
prior to and on April 5, however, that assertion is not supported by the record. First, Nowrouzi’s
testimony that he and/or Burch asked Donald Scruggs not to go to the site on Wednesday and Thursday is
negated by Nowrouzi’s text messages stating otherwise. Second, there is not even the slightest hint in any
of their communications prior to April 9 of acrimony between them. (Tr. 532-38.)
7 Donald Scruggs testimony that he was present on April 4 before leaving for the airport to pick up his
girlfriend was corroborated by the credible testimony of Brian Scruggs, as well as Burch’s vague
recollection that Donald Scruggs mentioned at the foreman’s meeting that he would be leaving early to
pick up his “wife.” (Tr. 220-21, 243-44, 436.) Riley’s vague and speculative testimony that he told
Nowrouzi on April 4 that Donald Scruggs never showed up that day was not credible since Nowrouzi
confirmed Donald Scruggs’ hours of work for April 3 and April 4 by text message later that afternoon.
(Tr. 499-500; GC Exh. 6.) Moreover, Nowrouzi did not dispute Donald Scruggs’ version of their
subsequent amiable telephone conversation as to why he left early. (Tr. 546-47, 551-52.)
8 R. Exh. 16 at 1.
9 Nowrouzi’s testimony indicating that he took issue with Donald Scruggs leaving early on April 4
was not credible. Nor was it corroborated by the uncertain testimony of Riley, who was not sure of the
days and incorrectly recalled that Monaco was also present on April 4 (Tr. 498-502, 551-52.) Donald
Scruggs testimony, as well his text communication with Nowrouzi later that day, indicate otherwise and
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D. April 5, 2019
On April 5, Donald and Bryan Scruggs, Monaco, Chaney and Riley (collectively referred
to as the crew) reported to the job site between 7:00 a.m. and 8:00 a.m. The goal was to lay the 5
first course of block around the perimeter of the building site. However, batter boards needed to
hold layout lines and indicate the limits of the foundation had not yet been installed by the
concrete crew. This made it difficult for Donald Scruggs to measure distances between the
walls, but he measured anyway using marks made by the concrete crew using a laser level set to
determine the floor height.1010
The crew encountered a problem when Monaco was unable to get a new mixer started in
order to mix a batch of mortar. He tried to resolve the problem but returned about 45 minutes
later to report that the pull cord broke. The problem was ultimately fixed when an employee
from the equipment rental returned to the site and turned on the safety kill switch.15
After the mixer was activated, the crew proceeded to produce mortar and lay the first of
course of bricks. Bricklaying started before the lunch break and continued thereafter. Nowrouzi
assisted in carrying the blocks to the masons and was present throughout that process. At
approximately 4:00 p.m., the crew finished laying the first course of blocks and the course was 20
ready for the next step – grouting the blocks.11 At that point, Nowrouzi told him to send Bryan
Scruggs and Monaco home. Donald Scruggs told Nowrouzi that he needed them to stay and
perhaps they might agree to work as laborers. Nowrouzi asked Donald Scruggs if they would
work for laborers’ wages and the latter agreed. Donald Scruggs then instructed Monaco and
Bryan Scruggs to start grouting the blocks.1225
Nowrouzi left the job site while they were grouting between 4:15 and 4:30 p.m. for about
30 minutes to buy a hose to wash the mixer. He returned as the crew was finishing the grouting.
Nowrouzi told Donald Scruggs that they grouted the holes in certain blocks that needed to be left
open every 32 inches for rebar to pass through vertically. Donald Scruggs suggested that the 30
crew remove the blocks before the grout hardened, but Nowrouzi told him not to worry about it
and that it would be taken care of later.13

were corroborated by Bryan Scruggs credible testimony (Tr. 50-54, 200-01, 271-72; GC Exh. 6.)
10 Donald Scruggs was present the day before but did not mention this issue to Nowrouzi. (Tr. 56-59.)
11 Donald Scruggs did not dispute the credible testimony of Nowrouzi and Burch that he was
instructed during the foreman’s meeting and provided with the plans and specifications on how to lay and
grout the blocks, which was also stated in the drawings. (Tr. 376-91, 436-38; R. Exh. 9-12.)
12 I credited Nowrouzi’s testimony on this issue. (Tr. 539-94.) Donald Scruggs equivocated and
provided inconsistent testimony regarding their discussion about sending Monaco and Bryan Scruggs
home at that point. (Tr. 59-64.) However, Bryan Scruggs acknowledged that Nowrouzi asked him to
work as a laborer (Tr. 272.), while Monaco, although denying the allegation, conceded that he deferred to
Donald Scruggs on this issue. (“Donnie and Max had their conversation that it was agreed that we should
stay and finish the job.”). (Tr. 334-35.)
13 When asked what caused him to look at the grout when he returned to the site, Nowrouzi was non-
responsive and delved into a long-winded explanation of how he had explained the importance of the
grouting component of the work to Donald Scruggs. (Tr. 393-94.)
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6
When the crew concluded work on April 5, they were informed that work would resume
about one week later after plumbing and electrical installations.14 Monaco and Bryan Scruggs
were the first to leave at around 5:30 p.m. Donald Scruggs and Chaney left around 6:00 p.m.
Nowrouzi and Riley remained.15 Nowrouzi told Donald Scruggs that he would keep track of the
hours.165
E. The Respondent Decides to Replace the Crew
On April 6, Donald Scruggs text messaged Nowrouzi a picture of the mixer at the job
site. Nowrouzi did not respond.17 By that time, however, he had already decided to replace 10
Donald Scruggs. Later that afternoon, Nowrouzi contacted Diego Vinegas, a masonry foreman,
who had previously applied to the Respondent. Vinegas was currently working on a masonry job
in Dallas, Texas, but was interested in returning home to the Kansas City area. After
interviewing Vinegas, Nowrouzi offered him the foreman position and asked if Vinegas could
put together a crew to replace the current one. Vinegas said he was available immediately. 15
However, Nowrouzi said that Vinegas was not needed until the work resumed on April 15.
F. April 8
At some time during the morning of April 8, Burch was notified by Brian Shields, 20
Centric’s project superintendent, that the block configuration was out of square as illustrated in a
drawing emailed to him from Shields. Nowrouzi asked Burch if the problem was their mistake.
Burch replied that he did not know for sure and suggested that he and Donald Scruggs remeasure
the layout. Nowrouzi replied that Donald Scruggs was no longer the foreman.18
25
At 5:04 p.m. on April 8, Nowrouzi text messaged Donald Scruggs a photograph of the
blueprint with a highlighted area and a note, “That’s a $1,500 mistake.” Scruggs replied at 6:31
p.m. with a question, “$100 a block?”19 Nowrouzi still did not inform Donald Scruggs that day
that he was going to terminate him. However, at some point during the day, Nowrouzi called
Vinegas and asked if he could start work the next day, on April 9. Vinegas accepted the offer, 30
left Dallas and returned to Kansas City on April 8.

14 Although flummoxed by the grouting problem on April 5, there is no credible evidence that
Nowrouzi took steps to replace the bricklayers until the next day when he contacted Vinegas. (Tr. 530-
31.) I did not, however, credit Nowrouzi’s testimony that he typed letters of termination for Donald
Scruggs, Bryan Scruggs and Monaco at home during the evening on April 5. The letters were neither
provided to the General Counsel in response to subpoena nor sent to any of the aforementioned
individuals, even after they were terminated. (Tr. 401-02, 407-10; R. Exh. 15-17.)
15 Donald Scruggs and Nowrouzi were generally consistent as to the time when the crew stopped
work. (Tr. 66, 358.) Riley on the other hand, had poor recollection of dates and times and incorrectly
estimated that the work ended that day at 2:00 or 3:00 p.m. (Tr. 511-12.)
16 Nowrouzi did not dispute Donald Scruggs’ credible testimony about this conversation. (Tr. 64-66.)
17 The Respondent erroneously asserts that Donald Scruggs was terminated on April 5 (Tr. 366.),
although I credit Nowrouzi’s explanation that he did not tell him he was terminated after receiving the
text on April 6 because he does not respond to messages during weekends. (Tr. 361; GC Exh. 6.)
18 Shields’ email to Burch on April 8 was not produced. (Tr. 438-40, 519-529; R. Exh. 12, 16.)
19 GC Exh. 7.
JD–90–19
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G. April 9
At 7:13 a.m. on April 9, Donald Scruggs text messaged Nowrouzi that he “fell on the job
Friday and won’t be able to come in today my neck and lower back are killing me. I tripped on
the rebar that was bent down for the floor. I may have to see a doctor. What do you suggest 5
should I call Centric?” Nowrouzi replied, “No I’ve talked to Centric.” Scruggs replied that he
“talked to Bryan the superintendent last night on phone.” Nowrouzi replied, “Ok I’ll call him
now.”20
At 10:34 a.m. on April 9, Donald Scruggs text messaged Nowrouzi asking “[a]re the 10
paychecks ready yet?” Nowrouzi replied that the checks would be ready at 6:00 p.m. Scruggs
replied that others were calling him about the paychecks and assumed that they should be told to
go to Nowrouzi’s office. Nowrouzi replied that Donald Scruggs should have employees call him
directly. Donald Scruggs agreed.21
15
At 1:47 p.m., Chaney contacted Nowrouzi about his check and the latter replied that he
could come pick up his check later that afternoon. When Chaney picked up his check that
afternoon, he believed the amount to be less than the full amount for the 10 hours that he had
worked to that point. He attempted to discuss his pay with Nowrouzi and Burch, but they said
that they were unable to talk to him at that time because they were in a meeting.2220
At 5:27 p.m. on April 9, Donald Scruggs text messaged Nowrouzi that he “didn’t pay me
for my time I had 21 hours. I am calling [Centric] no OSHA payment.” Nowrouzi replied that
he did not understand what Scruggs meant and the latter replied that Nowrouzi “shorted me in
pay! I worked 11 hrs on Friday. And had 10 hrs before that. 21 hrs total.” Nowrouzi replied by 25
asking if Scruggs called Centric. Scruggs replied that he would if he had to. Nowrouzi replied
that he saw Scruggs “text a little bit late Otherwise I wouldn’t write your check until you do
whatever you wanna do Your service is not needed anymore.” Scruggs replied that he would
“file a lien on the property I am calling Centric right now.” Nowrouzi replied, “Don’t push me
to force you to pay what you did wrong Centric will give you shit.” Scruggs replied by asking, 30
“which doctor does your work comp want me to go to? I fell on your job Friday.” He also
added that “I never told you this but you will average about 60 block per man per day that is
what most other real contractors bid a job similar to this at. Good luck on your 160.” Nowrouzi
replied, “You advise me on block Let me advise you on business behavior Don’t text/talk to
anyone when you are angry You always should keep your friends.”35

20 Chaney confirmed to Nowrouzi that Donald Scruggs fell at one point on April 5. (GC Exh. 26 at
6.) However, Donald Scruggs’s claim that he previously tried to report an injury was not credible. He
never told Nowrouzi about an injury during any of their conversations on April 5 or 8. Nor is there any
proof of such a report. Scruggs only claimed an injury after Nowrouzi confronted him about the improper
installation of the blocks and the $1,500 cost. At that point, Scruggs disingenuously notified Nowrouzi
that he would be unable to come into work the next day when in fact he knew that the Respondent would
not resuming work until later in the week at the earliest. (GC Exh. 8 at 1-2.)
21 GC Exh. 8.
22 Chaney’s testimony that he tried to speak with Nowrouzi and Burch was unrefuted. (Tr. 289-91.)
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H. April 10
On April 10, Vinegas met Nowrouzi and Shields at the job site, reviewed the plans and
specifications. He also measured the distances between the first course of blocks that had been
laid by the crew and determined that the distances between walls were about three to four inches 5
too far apart. Vinegas and a laborer proceeded to demolish and replace the first course. It took
six hours to remove the grout and cut the rebar over two to three days.23
At 8:47 a.m. on April 10, Donald Scruggs text messaged Nowrouzi asking, “Are you
going to pay for the 21 hours that I worked after injury?” And you never answered the question10
in which doctor I need to see for my injury? Nowrouzi replied:
Here is the last time I reply to you as you are a scam 1. You’ve been paid based on your
hours and more text about it will be considered as harassment 2. Every injuries (sic)
must be reported within 24 hours after the accident Plus the zoo has cameras everywhere 15
and there are witnesses if you have got injured. Don’t text me again and go through the
legal process. You will be sued if you lie.
Scruggs replied, “I will see you in court then. Thank you.” Nowrouzi reiterated his
admonition to refrain from texting him and Scruggs replied with the same remark, adding that he 20
would consider it harassment. Nowrouzi replied that he would “block” Scruggs’ check “for
more investigation. The accountant might make a mistake.”
Up to that point, Nowrouzi had not mentioned to Donald Scruggs or any of the other
crew members that they were being replaced by Vinegas’ crew. At 10:45 a.m., Nowrouzi text 25
messaged Bryan Scruggs:
I'm going to do some changes in my field team. So far your service is not required in the
field anymore. But I’m hiring office staff as estimator and project manager. Send me
your resume if you have required skill and if you are interested in.30
On April 10 at 11:40 a.m., Chaney asked Nowrouzi about the status of the zoo project.
A few minutes later, Nowrouzi replied that the concrete was being poured on Thursday and
“[w]e are going to the jobsite either Friday or Saturday.” He added that the “the Forman has
been changed . . . Donnie and Bryan are not with us anymore.” Chaney asked if Nowrouzi 35
would let him know when to return to the job and the latter said to “be ready for Friday or
Saturday. I’ll text you a day in advance.”
Nowrouzi never contacted Chaney after that exchange about returning to work.24 A few
minutes later, however, Nowrouzi asked Chaney if he left with Donald Scruggs on Friday. 40
Chaney said “yes we left same time.” Nowrouzi then asked if Chaney saw Donald Scruggs get

23 Vinegas’ first day of work was unclear. He initially testified that he returned to the Kansas City
area on April 8 and was to start the repair work the following day. Nowrouzi also testified that he met
Vinegas at the site on April 9. (Tr. 531.) However, Vinegas, whom I found more credible than Nowrouzi,
subsequently testified on cross-examination that he had not been to the site prior to April 10. (Tr. 466-71.)
24 This finding is based on Chaney’s credible and unrefuted testimony. (Tr. 310.)
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hurt. Chaney replied that he “was not aware of anything.” Three hours later, Nowrouzi asked
Chaney if Donald Scruggs called him. Chaney did not immediately respond and Nowrouzi
followed up about a half hour later: “I asked you a question Scott.” Chaney replied shortly
thereafter, acknowledging that Donald Scruggs called him “and we talked.” Nowrouzi then
asked, “anything I should know?” Chaney replied, “Not really. When we left I didn’t notice 5
anything. But I do remember him falling earlier in the day when we were setting the back
corner. His pant leg got caught on a piece of rebar.” Nowrouzi replied that he would have the
zoo check the cameras and that Donald Scruggs would “be in trouble for false information.”
Nowrouzi pressed Chaney to tell him the truth and “if you want to tell me something else.”
Chaney reiterated that he saw Donald Scruggs fall at about 9:30 a.m. Nowrouzi then asked if 10
Donald Scruggs told him why he terminated him. Before Chaney could answer, Nowrouzi asked
if Donald Scruggs told him that Nowrouzi would fire Chaney as well like he “told the other guys
he called (Anthony and Conrad and . . . ).” Chaney did not recall Donald Scruggs mentioning
that. Nowrouzi then informed Chaney that he terminated Donald Scruggs because “he put the
first course of the block out of place (in a wrong place)” and had to bring in another “team” to fix 15
the error. Nowrouzi added that Donald Scruggs was “revenging now, calling everyone by false
information” and added that he had no plans to fire anyone else unless they play “his dirty
game.” Nowrouzi then asked Chaney if Donald Scruggs asked him how much Nowrouzi was
paying him. Chaney replied that Donald Scruggs did not ask him about pay. Nowrouzi also
asked if Donald Scruggs asked if he had an OSHA-10 certification. Chaney replied that he did 20
not think so.25
At 12:11 p.m., Bryan Scruggs replied, “Max, ur clueless, good luck.” Nowrouzi replied
that he “wouldn’t change the team if you guys had knowledge of masonry.” Bryan Scruggs
replied, “Lol ok. There’s a reason why everyone wants me.” Nowrouzi replied, “The reason is 25
you guys even didn't know how to start a brand new mixer and plus this photo [of the
blueprint].” Bryan Scruggs replied that Nowrouzi was an idiot for lumping him in with the
others. Nowrouzi replied that he was an idiot for hiring Donald and Bryan Scruggs. After
several more exchanges, Bryan Scruggs said that he understood how Nowrouzi felt, but that he
“didn’t do anything wrong, I did what I was told and wanted to help make u money I’m not mad 30
I just didn’t like to be blamed.” Nowrouzi replied that he understood.26
At 1:18 p.m., Donald Scruggs text messaged Anthony Riley, confirmed that he had an
OSHA-10 card, informed him that the prevailing wage rate for forklift operators was $56.76 per
hour, and forwarded a copy of the applicable wage chart. The text exchanges between Scruggs 35
and Riley concluded at 2:11 p.m.27 Included in the exchange at 2:17 p.m. was an entry that Riley
intended for Nowrouzi but mistakenly sent to Scruggs:
Just basic (sic) saying how you fired him and that I’m next to be fired. And he gave me
his number in case you fire me.2840

25 GC Exh. 26.
26 GC Exh. 18 at 1-6.
27 Riley corroborated Donald Scruggs’ testimony that the latter reached out to Riley about how much
he was getting paid and what he was entitled to. (Tr. 89-91, 512-513, GC Exh. 13-14.)
28 Riley confirmed Scruggs testimony – referring to Riley’s 2:17 p.m. text – that he mistakenly
reported his discussion with Scruggs at page 4 of the October 10 text messages to Scruggs instead of
Nowrouzi. (Tr. 95, 512-517; GC Exh. 13 and 14 at 4.) In any event, although Riley was not sure that he
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10
Donald Scruggs also mistyped a portion of his reply to Riley, referring to himself when
he meant to refer to Nowrouzi: “That’s right I did! Was just trying to help you out.” Riley
replied, “I know.”
5
At 2:10 p.m. Nowrouzi texted Burch and complained that Donald Scruggs was texting his
other employees.29 At 2:48 p.m., Nowrouzi texted Donald Scruggs about his communications
with the other crew members and a contentious exchange followed:
So you called my other employees. Did they give you a shit? Did Anthony give you a 10
shit? Did Centric give a shit?30
Donald Scruggs replied, “No, I have a lawyer. Quit texting me. Harassment.” Nowrouzi
replied that:
15
We just talked to Centric and Centric is gonna pay overtime as they are behind. My
employees will make a good money but you
It’s illegal to contact my employees asshole. Don’t put yourself in a trouble.
They don’t give you a shit. They like their job. Why are you BSing while they don’t
listen to you. And instead they tell me immediately what you said20
Asshole
Donald Scruggs replied, “Prevailing wage job.” Nowrouzi replied that he had “3
prevailing projects in a row” and would “get more and more. Others will get a good salary from
prevailing wage as they are respectful and good worker[.] You will not.” Donald Scruggs25
replied to “Quit texting” but Nowrouzi continued on with his rant about Scruggs contacting other
employees:
Who is such asshole to listen to you? Leaving a prevailing wage and be against his boss?
Scott? Anthony? Conrad? Huh, who?30
At 3:01 p.m., Nowrouzi texted Donald Scruggs again stating, “He sent me your print
screen.”31 Scruggs replied, “Lol” which is commonly understood to mean, “lots of laughs.”
Nowrouzi dared Donald Scruggs to “tell me who” and Scruggs replied, “Smile it’s a good day.”
Nowrouzi replied that “[t]hey didn’t give you a shit. He sent me your print screen.” Donald 35
Scruggs said, “so” and Nowrouzi replied, “I know what I’m doing. I wouldn’t be here if
someone like you could take me down.” Scruggs replied, “You don’t know much really.”
Nowrouzi replied, “I know dummy You think I don’t know what is happening. All of them you
could fix it by an apology instead of threatening me. Scruggs replied, Talk to my attorney and
don’t text anymore do you understand? Nowrouzi replied, “Lol Don’t call/ text my employees 40
anymore asshole. Scruggs replied, “No need to I got all I needed.” Nowrouzi replied, “You got

forwarded the wage information from Scruggs on to Nowrouzi, the errant text indicates that Nowrouzi
was in communication with Riley about Scruggs. (Tr. 518.)
29 R. Exh. 16 at 2.
30 GC Exh. 8-9.
31 GC Exh. 11 at 6, 12; GC Exh. 12 at 5, 10.
JD–90–19
11
my ass lol.” Scruggs replied, “I wondered why your handshake was so weak. Lol.” Nowrouzi
replied, “Lol Dummy I have no weak spot in my whole body including my handshake. Next
time when you do something wrong in your job Apologize your boss and try to fix instead of
doing bunch of crap. Scruggs replied, “No need to get emotional Max. It will all work out.
[winking emoji] luck.”5
Nowrouzi replied, “Emotional? Kiss my ass. You are emotional and calling people I
told them whoever gives you a shit, he is after out.” Scruggs replied, “[t]hen quit texting me ok?
Smile.” Nowrouzi replied, “[y]ou kidoo are not even my level[.] Just didn’t have to do
anything[.] Wanted to tell you those guys have told me [.] Now shut up[.]” Scruggs concluded 10
with by saying “Yes mam.”32
I. April 11
On April 11, Nowrouzi text messaged Donald Scruggs that his paycheck was incorrectly 15
calculated because the Respondent’s accountant was unaware of the applicable prevailing wage
rates. However, the accountant would correct the mistake when he returned the following week
and a check for the shortage would be mailed to Scruggs. Scruggs asked if the amount would
cover the 21 hours that he worked during the week of April 1 but Nowrouzi said the number of
hours worked was correct as previously calculated. Scruggs said that he was in the process of 20
putting a mechanic’s lien on the project unless he was paid for 21 hours at $55.16 per hour.
Nowrouzi welcomed Scruggs to do as he wished but reiterated that the message was just to check
on the correct mailing address. Scruggs replied that the address was as stated in the personnel
paperwork, “if you understand English do u need interpretation help?33
25
At 2:38 p.m. on April 11, Nowrouzi text messaged Monaco and asked if Scruggs called
him. Monaco replied that Scruggs had not contacted him and asked if he was working the next
day. Nowrouzi replied that “[t]hey are pouring today. I’m waiting for them to let me know if we
should work tomorrow or maybe Saturday. They have not let me know yet. Donnie is not with
us anymore. He’s been calling other guys and [giving] them false information and panic them. 30
Be aware of that.” Monaco replied, “Please let me know asap. Thank you. Sorry to hear about
Donnie. He’s a good man. But the show must go on. I’m ready to work [Friday] and/or
[Saturday]. Nowrouzi messaged Monaco later that about the need to correct his paycheck and
send him another check because the accountant failed to apply the prevailing wage rates. At
3:13 p.m., Monaco confirmed that his address did not change and said that Nowrouzi was 35
“welcome to call me anytime concerning work. And would prefer a phone call concerning
money.” He texted again at 3:44 p.m. stating that he preferred to pick up his check in person.34
At 3:10 p.m., Nowrouzi text messaged Chaney to inform him that his paycheck had been
calculated incorrectly because the accountant did not apply the prevailing wage rate. He 40
informed Chaney that the accountant would be in the office on April 15 at 5:00 p.m. and would
“recheck and will mail you the balance to the address in your employment document.”
Nowrouzi also asked Chaney to let him know if his address had changed. At 3:54 p.m., Chaney

32 GC Exh. 11-12.
33 GC Exh. 15.
34 GC Exh. 22.
JD–90–19
12
confirmed that his address had not changed. There was no mention by either Nowrouzi or
Chaney as to a date for the latter to return to the job site.35
At 3:11 p.m., Nowrouzi text messaged Bryan Scruggs that his wages had not been correctly
calculated because the accountant did not apply the prevailing wage rate. He said that a check 5
covering the shortage would be sent out the following week.36
J. April 12
On April 12, Monaco followed up with a text message asking Nowrouzi for clarification 10
about the shortage in his pay and to call him. Nowrouzi reiterated the explanation about the
miscalculation by the accountant and that it was “not a big deal” because he would probably be
getting a check for less than $5.00. Monaco’s congenial tone changed at that point:
My check was $55.16 an hr for 7 1/2 hrs. I clocked in at 7 am and worked a 10 hr day 15
with a half hour lunch. That is a 10 hr day. You were there when I left at 5:30 pm. My
check was 2 1/ 2 hrs short. That’s what u thought you were contacting me about when
you said there was a problem.
Nowrouzi replied that “[it] should not be like that. According to you and Scott you guys 20
showed up at 8:00[.] Then 8:00 to 4:00 – 0.5 lunch = 7.5[.] From which is an hour you guys
were supposed to leave as I wanted labor grout the block. You guys accepted to stay as a labor
to grout. Correct me if I am missing something. You should have 7.5 h as bricklayer and 1.5 as
labor in your check.” Monaco replied that he “got there early to find out where to park and be
where I needed to be on time. Donnie put me to work as soon as I got there. And I was there 25
when you and Donnie discussed us bricklayers staying late to help grout to finish what needed to
be done. You agreed. So I worked 7-5:30 with a ½ lunch. That’s 10 hrs.”
Monaco quickly added, however, that he accepted Nowrouzi’s decision and was “still
ready to start Monday as scheduled” and “willing to take the [loss] to keep my job.” Nowrouzi 30
replied that compensable time was limited to time working at the site and asked if Monaco
recalled being asked to stay after 4:00 p.m. as a laborer. Monaco replied that it was “okay” and
“don’t worry about it. I’ve been paid for the day. We’ll call it good. I am a bricklayer. I get
paid bricklayers wage. I made mud and grout. I filled the silo. Drove the forklift. I did what
needed to be done to do what had to be done. And that’s what I did when the block needed to be 35
grouted. I made grout. I don't give discounts to labor. Your laborers are not unqualified. But I
pitched in and helped to get the job done. But like I said, don't worry about it.”
Nowrouzi replied “I'm sorry about that. That's what . . . Donnie told me and I did the
same to Bryan. It's fine. I write a check for the difference.” Monaco replied, “Well thank40
you very much. I appreciate it. Again, I look forward to the future with your company and what
we can accomplish together. I am happy to be working with Ken again. I’ve known him for

35 Contrary to the Respondent’s assertion, Nowrouzi’s statement did not revise his previous statement
to Chaney on April 10 that he would text him a day in advance about returning to work. (GC Exh. 27 at 2-
3; Tr. 297, 300, 310-11, 317.)
36 GC Exh. 19.
JD–90–19
13
many years. I hope it last a long time. I am excited to work at the zoo. And I promise I will do
my best. And will continue to do what needs to be done, no matter what that task may be.”
Later that afternoon, Monaco followed up with Nowrouzi about when to pick up the
check and “I’ll be ready first thing Monday morning.” After Nowrouzi told him to come pick up 5
the check, Monaco said he did not want to bother Nowrouzi and would plan to be at work on
Monday. After Nowrouzi replied to “come and take,” Monaco changed his mind: “No. It’s
okay. I don’t want any hard feelings and don’t’ want put my job at risk.” Nowrouzi replied that
“I’ve made it ready.” Monaco replied that he was on his way but Nowrouzi immediately replied
that he “had to leave. Ken is waiting for you.” When he arrived at the Respondent’s office that 10
afternoon, Burch walked him out and handed him a check for $15.84. After Monaco had driven
away, Burch called him and told him that he was terminated.37
K. April 15
15
On April 15 at 3:10 p.m., Nowrouzi notified Chaney that “[t]here was a problem in your
paycheck as the accountant was not aware of such issue in prevailing wage. The accountant will
be in office sometime next week and he will recheck and will mail you the balance to the address
in your employment document. Let us know if your address has been changed no later than . . .”
Shortly thereafter, Scott confirmed that his address was the one on file.3820
L. April 23
On April 23, Bryan Scruggs texted Nowrouzi mocking him about a problem at the site
regarding the installation of the steel plates. Nowrouzi denied that there was any problem with 25
construction and asked why Bryan Scruggs was still mad. Bryan Scruggs said that he still had
not yet received the check in the mail as promised. Nowrouzi assured him that he would be
receiving a check for less than $100 and offered to consider him for a job if he apologized.
Bryan Scruggs rejected the offer and sarcastically suggested he would reconsider if Nowrouzi let
him have sex with the female who handed him his check on April 9.3930
LEGAL ANALYSIS
I. THE PROTECTED CONCERTED ACTIVITY
35
Employers violate Section 8(a)(1) of the Act when they interfere with workers’ rights to
engage in concerted activity for their mutual aid and protection. Thus, as a threshold matter, it
must be determined whether each of the charging parties was engaged in such activity prior to
his termination, or at least whether the Respondent believed they were. See Hyundai Motor
Manufacturing, 366 NLRB No. 166 fn. 7 (2018) (“Applying Wright Line, we reach the same 40
conclusion that the Respondent unlawfully discharged the employees because it believed they

37 I credit Monaco’s testimony regarding his hours on the job over Riley’s vague and speculative
testimony that the latter was always the first to arrive at the site around 8:00 a.m. (Tr. 325-42; GC Exh.
22-24.)
38 GC Exh. 25, 27.
39 Bryan Scruggs was unaware at the time that the female was Tavakkoli. (GC Exh. 20; Tr. 274-75.)
JD–90–19
14
engaged in protected concerted activity”). The Board in Myers I explained that for activity to be
“concerted” under the Act, it must “be engaged in with or on behalf of the other employees and
not solely by and on behalf of the employee himself.” 268 NLRB 493, 497 (1984). For
conversations between employees to be found to be protected concerted activity, they must
involve more than “mere griping.” Mushroom Transportation Co. v. NLRB, 33 F. 2d 683 (3rd 5
Cir. 1964). Actions of an individual are concerted where they are “a logical outgrowth of the
concerns expressed by the group.” Mike Yurosek & Son, 306 NLRB 1037, 1038 (1992).
The wages and hours of concern to the charging parties are among the working
conditions considered to be protected concerted activity. See, e. g., Praxair Distribution, 357 10
NLRB 1048, 1059 (2011) (“It is axiomatic that Section 7 of the Act gives employees the right to
communicate with each other regarding their wages, hours…”); Waco, Inc., 273 NLRB 746,
747-48 (1984) (employee discussion of wages is inherently protected activity). Additional
discussion about Donald Scruggs’s alleged injury, even though it only directly impacted him, did
not remove that conduct from the protection of the Act because compliant handling of workplace 15
injury is an interest of all employees at a construction site. See Fresh and Easy Neighborhood
Market, 361 NLRB 151, slip op. at 8 (2014) (protected concerted activity exists even when only
one worker “has an immediate stake in the outcome” since coworkers have an interest where
“next time it could be one of them that is the victim”).
20
A contrary conclusion is not required because Chaney’s protected concerted conduct
occurred in conversations with Donald Scruggs after his dismissal. See Emarco, Inc., 284
NLRB 832, 833 (1987) (discussion with non-employees are protected as long as
“communication is related to an ongoing labor dispute” and not subject to any exception. An
ongoing labor dispute is a broad term including “any controversy concerning terms, tenure or 25
conditions of employment”); accord Compuware Corp., 320 NLRB 101, 103 (1995) (“The
Board has repeatedly held that employees may, with the protection of Section 7, communicate
with third parties about matters relating to an ongoing labor dispute”). Third parties deemed to
be employees also include recently terminated employees pursuant to the Board’s broad
construction of the term. See MEI-GSR Holdings, LLC, 365 NLRB No. 76 n. 1 (2017) (“the Act's 30
broad definition of ‘employee,’ . . . includes applicants for employment, former employees,
employees of other employers, and members of the working class, generally”); Briggs Mfg. Co.
75 NLRB 569, 571 (1947) (“employee” includes “former employees of a particular employer”).
In response to Donald Scruggs’ inquiry on April 9 on behalf of himself and other 35
employees as to when paychecks would issue, Nowrouzi instructed him to have employees call
him. Scruggs agreed and there is no other proof suggesting that Nowrouzi’s instruction was
coercive in nature. After Bryan Scruggs picked up Donald Scruggs’ paycheck later that day and
notified him of the underpayment, the latter complained and threatened to contact the general
contractor. In response, Nowrouzi threatened to withhold any further payments if Donald 40
Scruggs did that and then told him that he was terminated.
After he was terminated, Donald Scruggs contacted Riley and Chaney to discuss his
injury on the job, which Nowrouzi alleged to be a lie, and the appropriate wages and hours for
which they should be paid. Nowrouzi knew by April 10 that Donald Scruggs had discussed 45
these issues with Riley and Chaney. He sent them photographs of the prevailing wage rates and
reimbursement amount for OSHA fees.
JD–90–19
15
Monaco, however, never engaged in such discussion with Donald Scruggs, as Nowrouzi
learned on April 11. He complained to Nowrouzi about his paycheck that day but there is no
credible evidence that he engaged in protected concerted discussions with other crewmembers.
5
II. CHANEY WAS NOT TERMINATED
The Board does not require “the use of formal words of firing, discharge, or termination”
in order to conclude that the adverse action was unlawful. FiveCAP, Inc., 331 NLRB 1165, 1201
(2000). Instead, the test is “whether the employer’s conduct would reasonably lead employees to 10
believe that they had been discharged.” Id. Where the employer, through its words or conduct,
creates ambiguity as to the existence of an ongoing employment relationship, “it is incumbent on
the employer to clarify and remove any implication that the employee has been terminated.” Id.
Chaney was informed by Nowrouzi by text message on April 10 to “[b]e ready either for 15
Friday or Saturday. I’ll text you a day in advance.” Further discussion and questioning occurred
and Nowrouzi informed Chaney that Donald Scruggs had been fired but stated that he did not
intend to fire anyone else. On April 11, Nowrouzi sent the same text messages to others
regarding the accounting error and had Chaney confirm his address. There was no further
communication between the two. There is no indication at any point by Nowrouzi that Chaney 20
might be fired and, thus, he did not create the kind of ambiguity the Board prohibits. See, e. g. ,
Pennypower Shopping News, 253 NLRB 85, 85 (1980), enfd. 726 F.2d 626 (10th Cir. 1984)
(discharge occurred where employer stated both that no one had been fired and the employees
would receive their final checks in the mail); FiveCAP, 331 NLRB at 1201 (discharge occurred
where employer directed employee to leave the premises and refused to answer when employee 25
asked if he was fired).
In determining whether an employee was terminated, the Board has typically focused on
the employee’s efforts to obtain clarity on the matter. See Pink Supply Corp., 249 NLRB 674,
674 (1980) (“At worst [employer’s actions] created uncertainty that each party was equally well 30
equipped to rectify”); In re Lance Investigation Service Inc. , 338 NLRB 1109, 1110 (2003)
(“Even if there was ambiguity as to whether [employee] was discharged, [he] could have easily
cleared the matter up”). Because Nowrouzi did not create ambiguity, Chaney failed to text or
call Nowrouzi even a single time to clarify whether he still had a job when he did not hear from
Nowrouzi, and there was no reason for Chaney to believe “further inquiries into the 35
Respondent’s intentions [were] futile,” he was not discharged and therefore no unlawful
termination can be found. Pink Supply Corp., 249 NLRB 674, 674 (1980).
III. ADVERSE ACTION NOT ATTRIBUTABLE TO WAGE DISCUSSION
40
The credible evidence also failed to establish that Nowrouzi’s actions demonstrated
animus towards the protected concerted discussions of his employees that led to the discharges of
Donald Scruggs, Bryan Scruggs and Monaco. Animus can be found in the “timing of the
discharge,” evidence of the employer’s hostility and other facts demonstrating that an employer’s
proffered justification for an adverse employment action is pretextual. See Wright Line, 251 45
NLRB at 1090.
JD–90–19
16
Nowrouzi’s hostility towards Donald Scruggs was obvious, though it is difficult to pare
off what is perhaps natural hostility toward an employee alleged to have made repeated racist
comments, fabricated a workplace injury and engaged in time theft, and what is hostility in
response to the protected activity. Moreover, Nowrouzi’s comment to Chaney ton April 10 that
“I have no plans to fire anyone else, unless someone plays in his dirty game” during their 5
conversation about Donald Scruggs’s wage and injury complaints demonstrated hostility toward
the protected discussions between Donald Scruggs, Chaney and Riley. Finally, the General
Counsel also claims that Nowrouzi’s texts to Donald and Bryan Scruggs offering to employ them
again if they just apologize prove that the Respondent did not fire them due to incompetence, but
rather, their protected concerted discussions over wages. 10
Nowrouzi was aware that Donald and Bryan Scruggs discussed their wages after Donald
Scruggs contacted Nowrouzi about the alleged shortage on April 9. Additionally, Nowrouzi
questioned Monaco and Chaney about whether they spoke to Donald Scruggs about wages, and
sought to chill speech with unlawful threats made to and interrogation of Chaney on April 10. 15
There is no doubt that Nowrouzi’s actions demonstrated clear animus towards his employees
discussions about wages and hours worked, as well as Donald Scruggs’ alleged injury on the job.
Regardless of the animus that Nowrouzi displayed towards the protected concerted
discussions of the charging parties, however, the fact remains that the discharges were not 20
motivated by such conduct, but rather, his decision to replace them with another crew after the
April 5th fiasco. Nowrouzi, clearly scrambling to rectify his underpayment of the crew in
accordance with the prevailing wage rates for the project, insisted that employees speak with him
about the problem, individually and not with each other. Nevertheless, the evidence established
that Nowrouzi had already decided to replace the Scruggs cousins and Monaco with Vinegas’ 25
crew on or before April 9. The crew, and particularly Donald Scruggs as foreman, failed to
follow established practices and the project plans and specifications by improperly placing and
grouting the blocks.40
The chronology of events thus precludes a finding that their discharges were attributable 30
to any discussions about wages on or after April 10 since the Board’s causation test requires
more than merely proof of animus towards protected activity. See Tschiggfrie Properties, Ltd.,
368 NLRB No. 120, slip op. at 1 (2019) (“To meet the General Counsel’s initial burden, the
evidence of animus must support finding that a causal relationship exists between the employee’s
protected activity and the employer’s adverse action against the employee.”).35
Since the evidence established that Nowrouzi terminated the Scruggs cousins and
Monaco for reasons other than protected concerted activity, the Respondent also meets any
Wright Line burden shift requiring that it prove “that it would have taken the same action even in
the absence of the employee's protected activity.” 251 NLRB 1083 (1980). His decision to 40
terminate them for incompetence, even with his own faulty supervision factored in, preceded his
hostility towards their protected concerted discussions. See Summit Logistics, 337 NLRB 927
(2002) (no violation where protected conduct was a motivating factor in decision to terminate but

40 As previously noted, I did not credit Nowrouzi’s testimony that Donald Scruggs was fired because
of rude comments about Nowrouzi’s ethnicity and English language abilities. There was only one such
text message from Donald Scruggs after he was terminated.
JD–90–19
17
employer proved that it would have discharged the employee because of his inadequate
performance anyway).41
IV. CHANEY’S UNLAWFUL INTERROGATION
5
While incompetence and replacement of the entire crew at once constitute legal
justifications for the terminations, there is no justification for Nowrouzi’s interrogations of
Chaney and Monaco on April 10 and 11, respectively. An employer interrogates employees in
violation of the Act if “under all the circumstances, the interrogation reasonably tends to restrain
or interfere with the employees in the exercise of rights guaranteed by the Act.” Blue Flash 10
Express, Inc., 109 NLRB 591, 593 (1954). The Board specifically recognized certain relevant
factors in Rossmore House: “[1] the background, [2] the nature of information sought, [3] the
identity of the questioner, and [4] the place and method of interrogation.” Sunnyvale Medical
Clinic, 277 NLRB 1217, 1218 (1985) (citing Rossmore House, 269 NLRB 1176 (1984)).
15
Chaney was aware that Nowrouzi was annoyed about the discussions between Donald
Scruggs and the other employees because Nowrouzi said as much in a text message on April 10:
“I have no plans to fire anyone else, unless someone plays in his dirty game” . . . “He is
revenging now, calling everyone by false information [.]” Nowrouzi then requested information
as to the protected discussion between Chaney and Donald Scruggs by asking if they discussed 20
wages or OSHA 10 cards. Under the circumstances, Nowrouzi’s comments to Chaney and
Monaco and other employees, coupled with his inquiry as to their participation in those
discussions, unlawfully restrained Chaney and Monaco in violation of Section 8(a)(1) of the Act.
V. RESPONDENT UNLAWFULLY THREATENED CHANEY 25
“The Board has held that threatening employees with reprisals for engaging in union or
other protected concerted activities is coercive to the exercise of their Section 7 rights under the
Act.” UPMC Presbyterian Shadyside, 366 NLRB No. 142 (citing Metro One Loss Prevention
Services Group, 356 NLRB 89, 89 (2010)). This applies both to express and implied threats. Id. 30
Because the discussions of wages and the OSHA 10 card are protected concerted activity,
statements by Nowrouzi which impliedly threatened reprisal violated Section 8(a)(1) of the Act.
Avondale Industries, Inc., 329 NLRB at 1064, 1094 (1999) (“unspecified reprisals” were
unlawful where manager said “how could you have [worked with the Union]”). More recently,
the Board took a stricter view than Avondale without abrogating it. See Amnesty International, 35
368 NLRB No. 23 slip op. at 2 (2019) (declining to find coercive threats or interrogation where a
supervisor stated she perceived a petition to be “litigious,” “adversarial,” and “sort of levy[ing] a
threat”). Additionally, the Board has found that employers are not permitted under the Act to
threaten to fire other employees in statements made to a former employee. L. D. Brinkman

41 Nowrouzi’s text messages expressing a willingness to hire Bryan Scruggs as a project coordinator
immediately after discharging him and to Donald and Bryan Scruggs offering to rehire them in the future
if they apologized, do not evidence pretext for the discharges. The record as a whole suggested that
Nowrouzi primarily blamed Donald Scruggs for the improper placement and grouting of the blocks, and a
new crew of bricklayers was hired to replace the crew. With respect to the alleged reinstatement offers if
Donald and Bryan Scruggs apologized, the facts also preclude pretext because he had no intention of
rehiring them, especially after the extensive exchange of insults that transpired.
JD–90–19
18
Southeast, 261 NLRB 204, 210 (1982) (unlawful threat where employer told a recently-resigned
employee it “would fire only those ‘heading up the union organization’”).
In the present case, Nowrouzi threatened Chaney. Nowrouzi told Chaney over a text
message that he would fire those who “play in [Donald Scruggs’] dirty game.” In context, the 5
“dirty game” would reasonably be construed either as discussing wages and the like with Donald
Scruggs or helping to verify his injury, which Nowrouzi believed was a fiction. Chaney had
already confessed during Nowrouzi’s unlawful interrogation that he discussed both issues with
Donald Scruggs and he had seen him fall on the jobsite. Thus, under Avondale, Nowrouzi
threatened Chaney with unspecified reprisal. 329 NLRB at 1094. 10
CONCLUSIONS OF LAW
1. The Respondent, M&T Engineering & Construction LLC, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.15
2. The Respondent violated Section 8(a)(1) of the Act by (1) interrogating employees on
April 10 and 11, 2019 about their protected concerted activities, and (2) threatening to terminate
employees on April 10, 2019 if they engaged in protected concerted activities.
3. All other complaint allegations not specifically described above are dismissed.20
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 25
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended42
30
ORDER
The Respondent, M&T Engineering & Construction LLC, Overland Park, Kansas, its
officers, agents, successors, and assigns, shall
35
1. Cease and desist from
(a) Coercively interrogating about their protective concerted activities, specifically
discussions about wages and hours worked.
40
(b) Threatening to terminate any employees if they engage in discussions about pay about
Wages and hours worked.

42 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.
JD–90–19
19
(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.
5
(a) Within 14 days after service by the Region, post at its facility in Overland Park,
Kansas copies of the attached notice marked “Appendix.”43 Copies of the notice, on forms
provided by the Regional Director for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to [employees] [members] 10
[employees and members] are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respondent customarily communicates with
its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other material. In the event that, during the 15
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 employees employed by the Respondent
at any time since April 10, 2019.
20
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges 25
violations of the Act not specifically found.
Dated, Washington, D.C. November 26, 2019
30
Michael A. Rosas
Administrative Law Judge
35

43 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 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.”
,,,,.,_% ''c2- //Z,,
JD–90–19
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 interrogate you or threaten you with termination because of your protected
concerted activity, including participating in discussion about wages and hours worked.
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.
M&T Engineering & Construction 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.
8600 Farley Street, Suite 100, Overland Park, KS 66212-4677
(913) 967-3000, Hours: 8:15 a.m. to 4:45 p.m.
JD–90–19
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-240972 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (913) 967-3014.