National Surface Cleaning

National Labor Relations Board - Board Decisions

Jul 28, 1994

314 N.L.R.B. 549 (N.L.R.B. 1994)

549
314 NLRB No. 92
NATIONAL SURFACE CLEANING
1 The Respondent filed a motion for special leave to file a reply
to the Acting General Counsel’s answering brief. However, reply
briefs are automatically provided for under Sec. 102.46(h) of the
Board’s Rules. Therefore, no motion for special leave was necessary.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. The Respondent has ex-
cepted to the judge’s finding that Project Manager Ortega thought
that employee Yeppes had betrayed him. Ortega testified that ‘‘I was
extremely upset with [Yeppes] because I gave him work and I heard
he had filed a complaint against me. The [sic] hurt and why I was
upset was that he came over to shake my hand and thank me and
the next thing I know he filed charges against me. That’s why I was
really upset.’’ Although the Respondent correctly notes that Ortega
did not characterize Yeppes’ conduct as a ‘‘betrayal,’’ as did the
judge, we find that the judge drew a reasonable inference from
Ortega’s testimony.
In affirming the judge’s findings, we find it unnecessary to rely
on the fourth paragraph of the judge’s analysis section.
3 We adopt the judge’s recommended Order, including par. 2(a),
which contains the Board’s traditional reinstatement language. We
do not adopt fn. 7, par. 3 of the judge’s decision, which limits the
Respondent’s reinstatement obligation to the New York City area,
because we find no basis for deviating from the standard remedy the
Board provides employees unlawfully denied employment.
1 It was only with the second amended charge in Case 2–CA–
25606 that an 8(a)(4) allegation was made; the initial charges alleg-
ing that the Company violated Sec. 8(a)(1) and (3) of the Act. Not-
withstanding the fact that the second amended charge was filed more
than 6 months after the events alleged as being violative, it is my
opinion that the 8(a)(4) allegation is sufficiently related to the initial
and timely filed charge so as to avoid being barred by Sec. 10(b)
of the Act. Wilson & Sons Heating, 302 NLRB 802 (1991), and
Redd-I, Inc., 290 NLRB 1115 (1988).
National Surface Cleaning, Inc. and Humberto
Yeppes and Rodrigo Marmolejo. Cases 2–CA–
25606 and 2–CA–25894
July 28, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On December 21, 1993, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
Acting General Counsel filed an answering brief, and
the Respondent filed a reply brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, National Surface Cleaning,
Inc., Elmwood Park, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Terry A. Morgan Esq., for the General Counsel.
Nathan L. Kaitz, Esq. (Morgan, Brown & Joy), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on September 1–3, and
29, 1993. The charge in Case 2–CA–25606 was filed by
Yeppes on March 2, 1992, and was amended on March 16
and October 1, 1992.1 The charge in Case 2–CA–25894 was
filed by Marmolejo on July 30, 1992. A consolidated com-
plaint was issued on October 30, 1992, and alleged in sub-
stance:
1. That the initial charge in Case 2–CA–25606 was filed
by Yeppes on March 2, 1992, and served on the Respondent
on March 6, 1992. That charge which was received by the
Company on March 9, 1992, alleged that Yeppes and other
employees were laid off on February 21, 1992, because of
their union membership.
2. That since on or about March 12, 1992, the Respondent
in violation of Section 8(a)(1) and (4) of the Act has failed
and refused to recall Yeppes because he filed the aforemen-
tioned charge.
3. That on or about March 12, 1992, the Respondent in
violation of Section 8(a)(1) and (4), discharged Jairo Duque,
Cesar Duque, Libardo Quintero, and Carlos Silva because it
believed that these employees had given testimony and as-
sisted in the investigation of the aforementioned charge.
4. That since on or about April 9, 1992, the Respondent
in violation of Section 8(a)(1) and (4), has refused to permit
Libardo Quintero to return to work for the same reasons de-
scribed above in paragraph 3.
5. That in or about the first week of June 1992, the Re-
spondent in violation of Section 8(a)(1) and (4), has refused
to reemploy Rodrigo Marmolejo for the reasons described in
paragraph 3.
It is noted that the consolidated complaint does not allege
that the initial layoffs on February 21, 1992, which precip-
itated the initial unfair labor practice charge, was violative of
the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 There was evidence that Yeppes acted as a foreman for some pe-
riods of time while working at 1411 Broadway. However, at the
time that he last worked, he was not employed in any supervisory
capacity. In any event, even assuming that he was a supervisor with-
in the meaning of Sec. 2(11) of the Act, this would not be relevant
if it is shown that he was discharged for filing an unfair labor prac-
tice alleging antiunion discrimination against employees. General
Services, 229 NLRB 940 (1977).
3 It appears that on or about March 2 or 5, 1992, a number of em-
ployees visited Region 2 of the Labor Board and signed a sheet of
paper stating what their addresses and telephone numbers were. This
was done so that they could be contacted in the investigation of the
charge filed by Yeppes. The people who signed this list were Ger-
man Rivera, Hector Rueda, Jaime Vargas, Oscar Hernandez, Libardo
Quintero, Cesar Duque, Jose Sepolveda, Frank Rueda, Rodrigo
Marmolejo, Carlos Silva, and Olvier Toro.
II. ALLEGED UNFAIR LABOR PRACTICES
The Company is engaged in the business of removing as-
bestos from buildings. It has an office at Elmwood Park,
New Jersey, but operates at various building sites in and
around New York. At the sites, the Company employs a
project manager plus one or more foremen who supervise a
crew of asbestos removal employees. The project manager
who was involved in this case was a man named Pablo Or-
tega who was in charge of work at 1411 Broadway, New
York City.
The work of the Company involves taking down walls, re-
moving asbestos, and rebuilding. The employees involved in
this work, wear specialized suits and respirators which are
designed to protect them from inhaling asbestos fibers.
Manning of the various projects is normally carried out by
the project manager who, as a general rule, has a group of
employees with whom he has worked with in the past and
who he uses when needed. The work is sporadic and depends
on whether the Company successfully bids for jobs. For ex-
ample, the employees involved in the present case, agreed
that they would work for a limited period of time, be laid
off, and then recalled when another project became available.
Humberto Yeppes has been involved in this industry for
a long time in various capacities from employee to project
manager. In 1990, he along with some other persons, tried
to operate their own company but this was not successful. In
comparison to the other employees involved in this case,
Yeppes is older and more experienced. In fact, Pablo Ortega
worked under Yeppes at other companies and no doubt
learned his trade from the more experienced man.
In November 1990, Yeppes suffered a heart attack and
was on disability until May 1991. On or about May 28,
1991, Yeppes was hired by National at a jobsite located at
100 Wall Street where the project manager was Roger
Solama. When that job was completed, he was then hired to
work at 1411 Broadway by his former protege, Pablo Or-
tega.2
As of February 1992, the Company had a crew of about
20 workers employed at 1411 Broadway including the 6 al-
leged discriminatees. Sometime in February, Pablo Ortega
laid off Yeppes. Although there is a disagreement about
whether Yeppes was laid off in early or late February, this
difference is immaterial as it is not alleged that this layoff
was motivated by any illegal reasons. In fact, the evidence
indicates that by February 1992, a certain amount of friction
had developed between Yeppes and Ortega. It appears that
Ortega was not satisfied with a couple of foreman assign-
ments he had given Yeppes. On the other hand, it also ap-
pears that Yeppes was unsatisfied with the way that Ortega
didn’t listen to his suggestions. Yeppes testified that Ortega
assigned him to menial and relatively unimportant tasks.
On February 21, 1992, Ortega laid off the employees
working at 1411 Broadway with the exception of five people
who were reassigned to work at a new project at the Grace
building which is located several blocks away. None of the
alleged discriminatees were transferred at that point to this
new job and at least some of them believed that they were
not being transferred to the new location because the Com-
pany intended to man that job with nonunion workers.
On or about March 2, 1992, Yeppes visited the Grace
building and spoke to Ortega. Not being offered any work,
Yeppes shook Ortega’s hand and thanked him for the oppor-
tunity to work with him. Although unstated, it seems to me
that both men understood that Ortega was not going to be
offering Yeppes a job at this location.
Later that day, Yeppes, accompanied by Jairo Duque, filed
the charge in Case 2–CA–25606 which alleged that on Feb-
ruary 21, 1992, the Company laid off its employees at 1411
Broadway because of their membership in Laborers’ Inter-
national Union of North America. This charge was mailed
from the Board’s Regional Office on March 6 and was re-
ceived by the Company at its Elmwood Park offices on
March 9, 1992.3 Either on the same day or a few days later,
Yeppes and Jairo Duque went to Locals 59 and 104 of the
Laborers Union and made complaints that the Company was
using nonunion labor.
Also in the first week of March 1992, two of the alleged
discriminatees, Libardo Quintero and Rodrigo Marmolejo,
started working at the Grace building doing asbestos removal
work for a company called Mizul Maintenance Corporation.
According to Marmolejo, he was paid about $6 per hour less
than when he worked for National.
On March 6 or 7, 1992, Libardo Quintero received a
phone call from Pablo Ortega who said that Quintero should
call all the people who had been laid off on February 21, and
have them report to the Grace building on Monday morning.
Quintero called those people for whom he had phone num-
bers. He did not, however, call Yeppes, as he considered
Yeppes to be a supervisor and therefore not included in the
job offer made by Ortega.
On Monday March 9, 1992, 15 to 20 employees including
the alleged discriminatees (other than Yeppes), went to work
at the Grace building on National’s payroll. (I do not know
what if anything happened to Mizul Maintenance.) As noted
above, on March 9, the unfair labor practice charge filed by
Yeppes was received by the Company at its Elmwood Park
office.
Ortega testified that by Wednesday or Thursday of that
week (March 10 or 11), he heard rumors at the work place
that Yeppes had filed some charges. He states that at about
the same time, he explicitly heard from management
(Wittler), that Yeppes had filed the charge. Ortega concedes
that on that same day, he called up Yeppes and told him that
he was extremely upset because he heard that Yeppes had
filed a charge against him. According to Ortega, Yeppes said
that he felt very humiliated about not being used as a super-
visor and not being transferred to work at the Grace building.
551NATIONAL SURFACE CLEANING
4 In this regard, Marmolejo states that he was referring to a com-
plaint made to the Union and not to the Labor Board.
Rodrigo Marmolejo testified that on or about March 10,
1992, Ortega asked him if he had filed a complaint against
Ortega and the Company. According to Marmolejo, he said
that he had filed a complaint against the Company but not
against Ortega personally.4 Marmolejo stated that Ortega
asked if the other employees had made a complaint with
Humberto Yeppes and he responded that he didn’t know.
On Tuesday, March 10, 1992, Jairo Duque was absent
from the job and visited the Labor Board where he gave an
affidavit. He had received permission to take the day off
from Foreman Alzate but did not tell him where he was
going. Duque was also absent from work on March 11, 1992.
On Thursday morning, March 12, 1992, Libardo Quintero,
Carlos Silva, and the Duque brothers were told not to begin
work but to wait for Ortega to arrive.
According to Libardo Quintero, Ortega asked them if it
was true that they had filed a complaint against him with the
Union. Quintero states that when they denied this, Ortega
said that he saw the complaint and the signatures. Quintero
asserts that Jairo Duque said that Ortega was misinformed
and that Silva said that he had not filed a complaint against
Ortega but was going to file one now. Quintero recalled that
Ortega told the group to look for jobs at Wall Street, but
doesn’t recall if Ortega said anything about working at 1411
Broadway.
Jairo Duque testified that when Ortega came in, he told
the group of four that they could not work and that he was
informed that they had put in a complaint with the Union
against him and the Company. Duque states that he denied
this and challenged Ortega by asking if he had seen all the
names on the complaint. According to Duque, Ortega replied
‘‘no’’ but that he did see the name of Humberto Yeppes and
that he (Duque), should talk to Yeppes. (Although Jairo
Duque states that he didn’t know what Ortega meant by this,
I suspect that Ortega was implying that Duque should con-
vince Yeppes to withdraw his complaint.) According to Jairo
Duque, when he asked whether that meant that he would
have a job if he talked to Yeppes, Ortega said ‘‘no’’; to let
him calm down; and that he would call Duque later.
Cesar Duque and Carlos Silva also testified to this trans-
action on March 12, 1992. In essence, both claim that Ortega
initially accused the men of having filed a complaint against
him and the Company which was denied by them, Cesar
Duque testified that Ortega asked Jairo Duque to speak with
Yeppes. Carlos Silva testified that Ortega initially told the
group that they were laid off but then told them that they
should go to 1411 Broadway or 100 Wall Street to get work.
Pablo Ortega testified that shortly before Thursday, March
12, 1992, he was scheduled to go back to work on a new
job at 1411 Broadway which was to be done by a crew of
six on the weekends. He states that he initially picked a crew
to transfer from the Grace building to 1411 Broadway which
did not include either the Duque brothers, Libardo Quintero,
or Carlos Silva. He states that on the morning of March 12,
he heard on the walkie talkie that these four men were down-
stairs shortly before starting time and that he then changed
his mind about the assignments and decided to put them into
1411 Broadway rather than the original group that he had
previously selected. According to Ortega, the thing that made
him change his mind about the assignment was the fact that
Jairo Duque had missed work on March 10 and 11 without
calling in and that the others were late to work.
According to Ortega, this decision was made on the spur
of the moment and had nothing to do with the fact that a
charge had been filed with the NLRB. Nevertheless, Ortega
admits that ‘‘by this time I had heard that Humberto had
filed against me and I told Jairo Duque to speak to
Humberto; to have Humberto call me up because I wanted
to speak to him and I was very upset.’’ Ortega further con-
cedes that in this same conversation, he asked the group if
they had heard about Yeppes’ complaint and if they were
with Yeppes.
Carlos Loaza testified that on March 12, 1992, he spoke
with Foreman Javiar Alzate who told him and employee Har-
old Rueda, that a group of employees could no longer work
because they had put in a complaint against the Company.
He states that later in the day, his brother Gustavo Loaza
(also a foreman) told him essentially the same thing. In this
regard, Alzate did not really deny the conversation, albeit
stating that he was not speaking on behalf of the Company
but merely repeating rumors heard from other employees to
the effect that Humberto Yeppes had filed a complaint and
that there were other people who were with him. (Gustavo
Loaza no longer worked for the Company at the time of the
hearing and his address was not known.)
Jairo Duque testified that on the evening of March 12, he
spoke on the telephone with Ortega who asked if he had spo-
ken to Yeppes. When he said that he hadn’t, Ortega told him
to pick up his layoff check on March 13.
According to Jairo Duque, he along with his brother and
Carlos Silva went to the lobby of the Grace building on the
morning of March 13, to pick up their checks. He states that
Ortega again asked if he (Duque), had spoken to Yeppes and
further asked why Yeppes was doing this to him. According
to Duque, Ortega said that he knew about the complaint with
the National Labor Relations Board. Duque states that Ortega
said that they could go to 1411 Broadway or 100 Wall Street
to find jobs. Ortega, on the other hand, recalls simply giving
out checks to about 40 people on March 13, and doesn’t re-
call having any conversation with Jairo Duque on that date.
In this regard, neither Cesar Duque, Carlos Silva, nor
Libardo Quintero could recall Ortega saying much of any-
thing on this date.
Yeppes testified that on the evening of March 13, he re-
ceived a phone call from Ortega. He states that Ortega said
that he had found out about Yuppes’ complaint against the
Company and that Yeppes had put him in great ‘‘problems’’
with the Company. According to Yeppes, Ortega said that
Yeppes was ungrateful and stated just before hanging up,
‘‘you’re never going to work with me again, not even with
the Company.’’ That conversation, according to Yeppes was
the last time that he ever spoke with Ortega.
Although Ortega admits speaking to Yeppes on the phone,
he places the conversation on March 12, 1992. (This is not
a material difference.) Ortega states that he told Yeppes that
he was extremely upset with him because he had given
Yeppes work and then heard that Yeppes had filed a com-
plaint against him. According to Ortega, Yeppes responded
that he was upset because he was not being used as a super-
visor; that he felt very humiliated by not being given super-
visor’s work and not being brought over to the Grace build-
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing. Ortega denies that he told Yeppes that he would never
work again for Ortega or the Company.
Ortega testified that on the evening of Friday, March 13,
he telephoned the home of the Duque brothers and left word
with their sister that they were supposed to go to work on
Saturday morning at 1411 Broadway. It does not appear that
this message was transmitted, assuming that it was sent as
described by Ortega.
Neither the Duque brothers, Libardo Quintero, nor Carlos
Silva went to 1411 Broadway on the weekend of March 14.
They testified that they did go to 100 Wall Street on the
morning of Monday March 16, but found no one there. As-
suming that they were being misled about the possibility of
job openings, they did not go to 1411 Broadway.
According to Ortega, he decided not to call these employ-
ees for any more jobs because they failed to show up for the
weekend assignment on March 14, 1992. (In the case of
Quintero, Ortega asserts that he was only a part-time worker
anyway and that there was no work available for him to do
after March 13.) This was not, however, communicated to
these employees. In late March or early April 1992, Ortega,
on being asked for work by Silva, relented and put him to
work on the 1411 Broadway job for about 4 to 6 weekends.
In the meantime, Rodrigo Marmolejo, despite his assertion
that on or about March 10, 1992, he was asked about and
told Ortega that he had made a complaint, continued to be
employed without interruption at the Grace building jobsite.
Marmolejo states that he continued to work at this site until
about mid-March when he was told by Foreman Alzate that
he and the others who had been in Ortega’s group were
being transferred to 1411 Broadway. Marmolejo continued to
work at 1411 Broadway until that project was completed. He
testified that after the 1411 job was completed, he and an-
other employee went to a new project at the Mercedes Benz
building but that he was not put to work on that job, al-
though others were.
Pablo Ortega testified that Marmolejo worked for the
Company from March through May 1992. He states that
when they completed the 1411 Broadway job, he took a re-
duced crew of about 15 people to Mercedes Benz because
that job did not require the services of the 25-member crew
that had worked at 1411 Broadway. He states that Marmolejo
and Jaime Vargas showed up at the Mercedes Benz job but
that he only hired Vargas because Vargas could use a torch
but that there was no other work available due to the reduced
size of the crew.
Analysis
The General Counsel alleges that the Respondent refused
to rehire Humberto Yeppes because he filed an unfair labor
practice charge against the Company. She also alleges that
it laid off or discharged certain other employees because the
Company suspected that they assisted Yeppes in relation to
the unfair labor practice charge which he filed.
There is no contention that the Employer took any adverse
action against any of these employees because they filed any
complaints with any union or that they concertedly objected
to the Company utilizing nonunion employees at the Grace
building.
There is also no contention that when Yeppes was laid off
from the 1411 Broadway jobsite some time in February
1992, that this action was illegal under the National Labor
Relations Act. Nor is it contended that there was anything
unlawful in the Company’s failure to offer Yeppes a job at
the Grace building when the other members of the 1411
Broadway crew were offered jobs at that location prior to
March 9, 1992. (Recall that March 9, is the date that his un-
fair labor practice charge was received by the Company.)
It is my impression that the individuals involved in this
case were intelligent and hardworking people. It also is my
impression that they tended to talk to each other with a de-
gree of indirection that native New Yorkers are not used to.
In that sense, it seems to me that they spoke to each other
by implication and this at times, resulted either in mutual
misunderstanding or in my being unable to determine exactly
what someone meant when something was said.
Pursuant to Section 8(a)(4) of the Act, an employer may
not discharge or otherwise discriminate against an employee
because he or she has filed charges or given testimony under
the Act. This provision has been construed to include situa-
tions where employees have given affidavits to the NLRB.
It also is applicable when an employee is discriminated
against because an employer suspects him of filing a charge
or giving testimony. NLRB v. Scrivener, 415 U.S. 117
(1972); Trayco of S.C., 297 NLRB 630 (1990).
In the case of Humberto Yeppes, it is clear that his initial
layoff in February 1992 was not caused by any union or pro-
tected activity under the National Labor Relations Act. More
likely is that he and Pablo Ortega, now in reverse positions,
were uncomfortable in their new relationship.
It also seems to me that when Ortega sought to obtain a
full crew for the Grace building project in early March 1992,
he did not intend to hire Yeppes for this job. As Ortega’s
initial decision not to rehire Yeppes at least for this particular
project, preceded the Company’s receipt of Yeppes’ charge,
it cannot have been motivated by the filing of the charge.
This does not mean however, that the Respondent is off the
hook. It still could have violated the Act vis-a-vis Yeppes if
it later decided not to rehire or recall him to any job, in sub-
stantial part because he filed a charge against the Company.
In my opinion, the evidence shows that when Ortega was
advised on March 9, 1992, that Yeppes had filed an unfair
labor practice charge against him and the Company, he over-
reacted. By his own testimony, he was very upset about the
charge and thought that Yeppes had betrayed him.
I credit the testimony of Yeppes to the effect that on or
about March 13, 1992, he had a telephone conversation with
Ortega in which the latter expressed his displeasure about
Yeppes’ having filed a complaint. I also credit Yeppes’ testi-
mony that Ortega told him ‘‘you’re never going of [sic] work
with me again.’’
Although Yeppes had not been hired for the Grace build-
ing project (for nondiscriminatory reasons), this did not mean
that the Company had manifested, prior to March 13, 1992,
a decision to never hire him for any other future jobs. This
changed, however, by the conversation between Yeppes and
Ortega on March 13, when Ortega indicated that the Re-
spondent would never rehire Yeppes in the future. In this re-
spect, I think that the Respondent made and announced a de-
cision not to rehire Yeppes, not only for the Grace job, but
for any future jobs. As this, in my opinion, was notification
of an unequivocal decision not to rehire Yeppes for future
jobs, I think that it is actionable if it was motivated by illegal
considerations and would not have taken place for some
553NATIONAL SURFACE CLEANING
5 See also Dublin Town Ltd., 282 NLRB 307, 308 (1986).
6 Having determined that the Respondent unlawfully discharged
Libardo Quintero on March 12, 1992, the allegation in the complaint
that the Respondent refused to allow him to return to work on or
about April 9, 1992, is redundant and unnecessary.
other legitimate reasons. As I believe that Ortega made up
his mind never to rehire Yeppes after receiving notice that
Yeppes had filed an unfair labor practice charge, I conclude
that the Respondent violated Section 8(a)(1) and (4) of the
Act when Ortega told Yeppes on March 13, that he would
never rehire Yeppes.
I also conclude that Ortega’s decision on Thursday, March
12, to remove the Duque brothers, Libardo Quintero, and
Carlos Silva from the Grace building project was motivated
by his belief that they had supported Yeppes in relation to
the filing of the unfair labor practice charge. There is really
no dispute but that when Ortega told these men that they
were off this job, he simultaneously spoke of the complaint
that Yeppes had filed against him and the Company and
asked Jairo Duque to contact Yeppes, apparently intending
for Duque to convince Yeppes to withdraw the charge. It
may be that the four employees did not understand that Or-
tega was talking about an unfair labor practice charge, be-
lieving instead that he was talking about a union complaint.
Nevertheless, looking at this transaction from the outside, I
think that Ortega was referring to the unfair labor practice
charge which had just been received on March 9, 1992, and
which admittedly upset Ortega. (There was no showing that
the Company had received some kind of complaint from any
union.)
I do not believe that Ortega made the decision to remove
these four men from the Grace building project for the rea-
sons he gave at the hearing. For one thing, the testimony of
all the participants to the conversation of March 12, 1992,
made no reference to those asserted reasons and the only
thing mentioned by Ortega during that conversation or in his
subsequent conversation with Jairo Duque, was the Yeppes
complaint.
Given my conclusion that Ortega’s decision was motivated
by unlawful reasons, the next question is whether on March
12, the four men were discharged, laid off, or transferred to
another job at 1411 Broadway. Here, we face some difficulty
because of the ambiguous nature of what these people re-
member being said. Nevertheless, even assuming that the
men were not discharged or laid off but only transferred, this
would also be violative of the Act, particularly as the new
assignment was a night job which involved only weekend
work, with lower weekly earnings.
In my opinion, the credible evidence establishes that Or-
tega, after telling the four men that they no longer could
work at the Grace building, told them that they might be able
to get jobs at 1411 Broadway or 100 Wall Street where the
Company was working on other projects. I do not believe
that he told them that they were definitely reassigned to work
at 1411 Broadway and/or that they should report to that loca-
tion on Saturday morning. Assuming for argument’s sake
that he attempted to call the Duque brothers on Friday night
to have them report to work on the next day at 1411 Broad-
way, he did not manage to convey that message to them.
When the men went to 100 Wall Street on Monday morning,
they found no one from the Company at that location and
reasoned that Ortega had misled them about the availability
of jobs. They therefore did not go to the 1411 Broadway site
to look for work.
As stated by the Board in Ridgeway Trucking Co., 243
NLRB 1048 (1979):
The test for determining ‘‘whether [an employer’s]
statements constitute an unlawful discharge depends on
whether they would reasonably lead the employees to
believe that they had been discharged.’’ and ‘‘the fact
of a discharge does not depend on the use of formal
words of firing. . . . It is sufficient if the words or ac-
tions of the employer would logically lead a prudent
person to believe his tenure had been terminated.5
Applying this test to the facts of the present case, it is my
conclusion that the employees involved here were in fact dis-
charged because they had a reasonable basis for believing
from the events from March 12 to 15, that the Company no
longer desired their services. The fact that Carlos Silva was
eventually rehired for the 1411 Broadway job, does not
change my opinion as this occurred well after the events of
March 12 and simply represents, in my opinion, the fact that
Ortega changed his mind about Silva. I therefore conclude
that by discharging these men on March 12, 1992, because
it believed that they supported or assisted Yeppes in relation
to his filing of an unfair labor practice charge, the Respond-
ent violated Section 8(a)(1) and (4) of the Act.6
Having concluded that the Respondent unlawfully dis-
criminated against Yeppes, Quintero, Silva, and the Duque
brothers, I nevertheless do not believe that the evidence
shows that the Employer discriminated against Rodrigo
Marmolejo.
Marmolejo testified that he was questioned by Ortega on
March 10, 1992, about whether he had filed a complaint, and
whether other employees had made a complaint with
Humberto Yeppes. He states that he told Ortega that he had
filed a complaint against the Company but not Ortega and
that he knew nothing about any other complaints. (In fact,
there is no indication that Marmolejo had filed or made any
complaints to anyone.)
In any event, Marmolejo, notwithstanding the above, con-
tinued to work at the Grace building, until he, along with the
other employees who were members of Ortega’s usual crew,
were transferred back to 1411 Broadway. He worked at 1411
Broadway until that project was completed. His complaint is
based on the fact that when the job at 1411 was finished, Or-
tega took part of that crew over to another project at the
Mercedes Benz building but did not hire him.
The evidence shows that the Mercedes Benz job required
a smaller crew than what was required by the preceding job
at 1411 Broadway. Thus, Marmolejo was not the only mem-
ber of that crew that was not hired to work at the new job.
In this respect, Ortega testified without contradiction that an-
other man was selected to work over Marmolejo because this
person (Jaime Vargas), knew how to use a torch and
Marmolejo did not.
In my opinion, the fact that Marmolejo may have told Or-
tega back on March 10, 1992, that he had made some sort
of complaint against the Company, does not show that the
Company’s failure to use him on a new job in June 1992,
was motivated by discriminatory reasons. I am satisfied with
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In the case of Humberto Yeppes he was not hired for the Grace
building job for nondiscriminatory reasons. Also, as of March 13,
1992, when I concluded that the Respondent notified him that he
would never be rehired, it is not clear whether their was any position
available to him. Therefore, it would not be appropriate to automati-
cally commence backpay as of March 13, 1992, and inquiry should
be made as whether any new persons were hired after that date by
the Company at its New York City jobsites to determine if and when
Yeppes could reasonably have been expected to be hired but for the
illegal discrimination against him. Insofar as reinstatement is con-
cerned, I shall recommend that the Respondent offer him employ-
ment in a nonsupervisory capacity as this was his position at the
time he was initially laid off.
At the hearing, the Respondent wished to question the
discriminatees about whether they were legally in the United States
or had valid green cards. I sustained an objection to these questions
and ruled that this issue should be raised, if necessary, at the compli-
ance stage. See Accent Maintenance Corp., 303 NLRB 294, 297 fn.
7 (1991).
Reinstatement offers to all these men can only be made to the ex-
tent that the Respondent has, at the time the Order in this case is
complied with, an appropriate project in the New York City area
where it has been engaged and is employing workers.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
9 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.’’
Ortega’s explanation in this instance, and I shall recommend
that this allegation be dismissed.
CONCLUSIONS OF LAW
1. By notifying Humberto Yeppes on March 13, 1992, that
the Company would never rehire him and by doing so be-
cause he filed an unfair labor practice charge, the Respond-
ent violated Section 8(a)(1) and (4) of the Act.
2. By discharging Libardo Quintero, Carlos Silva, Jairo
Duque, and Cesar Duque on March 12, 1992, because the
Respondent believed or suspected that they assisted Yeppes
in the filing of his charge, the Respondent violated Section
8(a)(1) and (4) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not violated the Act in any other
manner alleged in the consolidated complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that 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 discriminatorily discharged or re-
fused to hire employees, must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).7
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, National Surface Cleaning, Inc., Elm-
wood Park, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, refusing to hire, or otherwise discrimi-
nating against any employee for filing an unfair labor prac-
tice charge or giving testimony in support of such a charge.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Humberto Yeppes, Jairo Duque, Cesar Duque,
Libardo Quintero, and Carlos Silva immediate and full rein-
statement to their former nonsupervisory jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and refusals to hire and notify the employees in
writing that this has been done and that these actions will not
be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Elmwood Park, New Jersey, and
at all jobsites located in New York City, copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 2, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the 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.
555NATIONAL SURFACE CLEANING
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, refuse to hire, or otherwise dis-
criminate against any of you for filing an unfair labor prac-
tice charge or giving testimony to the National Labor Rela-
tions Board.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Humberto Yeppes, Jairo Duque, Cesar
Duque, Libardo Quintero, and Carlos Silva immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from their dis-
charges, less any net interim earnings, plus interest.
WE WILL notify each of them that we have removed from
our files any reference to his discharge or refusal to hire and
that such actions will not be used against him in any way.
NATIONAL SURFACE CLEANING, INC.