Post Tension of Nevada, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 2009

353 N.L.R.B. 826 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 87
826
Post Tension of Nevada, Inc. and District Council of
Iron Workers of the State of California and Vi-
cinity. Case 28–CA–21886
January 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On October 28, 2008, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The Re-
spondent also filed limited cross-exceptions and a sup-
porting brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.3

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Charging Party has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. 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.
We also find no merit to the Respondent’s limited cross-exception
that the judge improperly incorporated by reference into his decision
the findings of fact and conclusions of law set forth in Post Tension of
Nevada, Inc., 352 NLRB 1153 (2008). See, e.g., Steel Workers (Dox-
see Food), 281 NLRB 1275, 1278 (1986), and cases cited therein.
In agreeing to adopt the judge’s dismissal of the allegation that the
Respondent violated Sec. 8(a)(1) when Superintendent Matt Pickens
allegedly told Union Representative Brady Bratcher that he was “caus-
ing trouble or problems,” Chairman Liebman does not rely on the
judge’s reasoning that the statement was made solely to Bratcher, rather
than directly to unit employees. Instead, she finds that the record does
not support the theory that the General Counsel alleged before the
judge (and that the Charging Party adopts in its exceptions), specifi-
cally, that Pickens’ statement constituted a statement that it would be
futile for unit employees to exercise their statutory rights.
No exceptions were filed to the judge’s findings of 8(a)(1) viola-
tions. Member Schaumber agrees with the judge’s finding that the
strike engaged in by employee Leobardo Delgado on April 10, 2008,
was not an unfair labor strike. He finds it unnecessary to pass on the
balance of the judge’s analysis of the 8(a)(3) allegation.
3 We shall substitute a new notice to conform to the language set
forth in the Order and the Board’s standard remedial language.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Post Tension of Nevada, Inc.,
Phoenix, Arizona, its officers, agents, successors, and
assigns, shall take the action set forth in the Order, ex-
cept the attached notice is substituted for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT orally promulgate and maintain an
overly-broad and discriminatory rule that prohibits em-
ployees who are working from telling striking employees
where crews of our employees are working.
WE WILL NOT orally promulgate and maintain an
overly-broad and discriminatory rule that prohibits em-
ployees from speaking to agents of the Union.
WE WILL NOT create an impression among our em-
ployees that their union activities or other protected con-
certed activities are under surveillance.
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.
POST TENSION OF NEVADA, INC.
Chris J. Doyle, Esq., for the General Counsel.
James T. Winkler, Esq., of Las Vegas, Nevada, for the Respon-
dent.
David A. Rosenfeld, Esq., of Alameda, California and Brady
Bratcher, Campaign Coordinator, of Pinole, California, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Phoenix, Arizona, on August 6
and 7, 2008. District Council of Iron Workers of the State of
POST TENSION OF NEVADA, INC. 827
California and Vicinity (the Union or the Charging Party) filed
an unfair labor practice charge in this case on April 22, 2008.
Based on that charge, the Regional Director for Region 28 of
the National Labor Relations Board (the Board) issued a com-
plaint and notice of hearing (the complaint) on June 27, 2008.
The complaint alleges that Post Tension of Nevada, Inc. (the
Respondent or the Employer) violated Section 8(a)(1) and (3)
of the Act. The Respondent filed a timely answer to the com-
plaint denying the commission of the alleged unfair labor prac-
tices and raising a number of affirmative defenses.1
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, to argue orally,
and to file briefs. Based on the record, my consideration of the
briefs filed by counsel for the General Counsel2 and counsel for
the Respondent, and my observations of the demeanor to the
witnesses, I now make the following3
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent, a Nevada corporation, with an office and place of
business in Phoenix, Arizona (the Respondent’s facility), has
been engaged in the business of fabricating and installing stress
cables in the construction industry. Further, I find that during
the 12-month period ending April 22, 2008, the Respondent
purchased and received at its facility goods valued in excess of
$50,000 directly from points outside the State of Arizona.
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The underlying dispute in this case had its inception in an
earlier unfair labor practice charge, which was the subject of a
decision issued on April 18, 2008, by Administrative Law
Judge Lana H. Parke. Subsequently, the Board issued a deci-
sion in Post Tension of Nevada, Inc., 352 NLRB 1153 (2008),
in which, for the most part, it affirmed the judge’s rulings, find-

1 All pleadings reflect the complaint and answer as those documents
were finally amended.
2 Counsel for the Union filed a posthearing “Joinder in Brief,” in
which he joins in the brief of the General Counsel.
3 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 US. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
ings, and conclusions. Accordingly, I have taken administra-
tive notice of that earlier case, and hereby incorporate by refer-
ence into my decision the findings of facts and conclusions of
law as set forth by the judge and affirmed by the Board.4
As found by Judge Parke, the Respondent’s construction pro-
jects in the Phoenix metropolitan area were staffed by field
crews, each consisting of a foreman and a varying number of
laborers. The Respondent’s workday practice in the Phoenix
area was for the field crews to report to the Phoenix facility,
receive their work assignments, and depart for their specific
worksites. Each crew was transported by its respective fore-
man in the foreman’s personal vehicle. Enroute to the work-
site, most crews typically stopped at a nearby Chevron gas
station/mini market (Chevron station) where the crew foremen
fueled their vehicles while crew members purchased food and
socialized, spending 20–30 minutes there. Further, having
established check-cashing privileges at the Chevron station,
many crew members cashed paychecks there on payday morn-
ings.
Beginning in 2005, Brady Bratcher, an organizer for the Un-
ion, began efforts to organize the Respondent’s laborers. For
that purpose, in early 2007, he began visiting the Chevron sta-
tion where Bratcher knew that many employees gathered before
dispersing in crews to individual worksites.
Judge Parke found that in September 2007, Matt Pickens, the
Respondent’s superintendent, told the field foremen not to take
the laborers to the Chevron station where they were likely to
meet Bratcher and that he told them that the Respondent would
no longer distribute paychecks on Friday mornings to further
discourage employees’ interaction with the Union. Thereafter,
the foremen communicated Pickens’ prohibitions to the field
employees.5 Judge Parke, with the Board affirming, concluded
that the foremen’s communication to the laborers of the prohi-
bition banning the customary morning Chevron station stops
was an overly broad and discriminatory rule, which interfered
with employee protected activity. As such, it constituted a
violation of Section 8(a)(1) of the Act. Further, the Board held
that the prohibition against going to the Chevron station also
reasonably tended to impede and discourage employee con-
certed activity, in violation of Section 8(a)(1) of the Act.

4 During the hearing in this case, I informed the parties of my inten-
tion to incorporate by reference into my decision the findings of fact
and conclusions of law as found by Judge Parke in the earlier case.
Further, I alerted the parties that I was going to consider those findings
of fact and conclusions of law as res judicata for the purpose of resolv-
ing the issues pending before me. To have done otherwise could have
resulted in conflicting opinions by different judges, based on the same
exact facts. I took this position over the objection of counsel for the
Respondent. According to counsel, the Respondent had filed excep-
tions to certain of Judge Parke’s findings of fact and conclusions of
law, which exceptions were pending on appeal to the Board. However,
since the conclusion of the hearing, the Board has issued its decision,
largely affirming the judge. Accordingly, the findings of fact and con-
clusions of law, as adopted by the Board in the earlier case, are now
clearly res judicata, and are biding on the undersigned and the parties.
5 Matt Pickens was found to be a supervisor and agent of the Re-
spondent within the meaning of Sec. 2(11) and (13) of the Act, and the
Respondent’s field foremen to be supervisors within the meaning of
Sec. 2(11).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD828
Judge Parke also found that in September 2007, Matt Pick-
ens and Javier Loya Bando,6 the Respondent’s assistant super-
intendent, told field employees that they were changing the
paycheck distribution practice to prevent the employees from
interacting with Bratcher at the Chevron station. The judge
concluded, with the Board affirming, that by making such
statements, ascribing an unlawful motive to a change in the
paycheck distribution practice, the Respondent was coercing its
employees in the exercise of their Section 7 rights. It, there-
fore, constituted a violation of Section 8(a)(1) of the Act.
On September 20, 2007, certain of the Respondent’s field
employees engaged in a work stoppage. That work stoppage
was protected by Section 7 of the Act, as in furtherance of the
employees “mutual aid and protection.” Judge Parke found that
by informing those employees that he would assume they were
quitting if they unloaded their tools and did not go to work that
morning, Pickens was threatening them with termination for
participating in a strike. The judge concluded, with the Board
affirming, that such a threat was a violation of Section 8(a)(1)
of the Act.
In her decision, Judge Parke concluded that the Respondent’s
unfair labor practices contributed to the September 20, 2007
strike and/or thereafter prolonged it. She specifically men-
tioned the field employees’ displeasure at being restricted from
the Chevron station, at being told to whom they could talk, at
being told their paychecks would be delayed to prevent them
from meeting with Batcher, and at being threatened that their
work stoppage was tantamount to quitting, all of which consti-
tuted unfair labor practices. According to Judge Parke, in de-
ciding to strike, the field employees both considered and were
provoked by these specific unfair labor practices on the part of
the Respondent. Further, she found that the Respondent had
not met its burden to show that the strike would have occurred
even if it had not committed unfair labor practices. Therefore,
she concluded, with the Board affirming, that the September
20, 2007 strike was an unfair labor practice strike from its in-
ception.
On September 26, 2007, the strikers presented the Respon-
dent with an unconditional offer to return to work signed by
each striker. Upon its receipt, John Hohman,7 the Respondent’s
vice president, informed the strikers that they had all been
“permanently replaced” and directed each to sign a “preferen-
tial hiring list.” The earliest any striker was recalled to work
was in December 2007. Judge Parke concluded, with the Board
affirming, that by failing to immediately reinstate the unfair
labor practice strikers who had unconditionally offered to re-
turn to work on September 26, 2007, the Respondent violated
Section 8(a)(3) and (1) of the Act.8
On September 7, 2007, Brady Bratcher went to the Respon-
dent’s Phoenix facility wearing a union cap, and requested an

6 Javier Loya Bando was found to be a supervisor and agent of the
Respondent within the meaning of Sec. 2(11) and (13) of the Act.
7 John Hohman was found to be a supervisor and agent of the Re-
spondent within the meaning of Sec. 2(11) and (13) of the Act.
8 One of the unfair labor practice strikers who was refused immedi-
ate reinstatement after making an unconditional offer to return to work
was Leobardo Delgado, who is an alleged discriminatee in the case
before me.
employment application. He informed the office worker on
hand, Maria Perez, that he wanted to work and to organize.
Matt Pickens, contacted by telephone, directed Perez to tell
Bratcher to leave the office or the police would be called,
which she did. She also refused to give Bratcher an employ-
ment application.9 Judge Parke concluded that refusing to give
Bratcher an employment application, which was customarily
proffered to all other job seekers, solely because of his union
affiliation was coercive regardless of whether or not completing
the application might lead to his employment. Accordingly,
she found, with the Board affirming, that the Respondent’s
conduct constituted a violation of Section 8(a)(1) of the Act.
The above summary concludes the recitation of background
facts and violations of the Act, as found by Judge Parke and
affirmed by the Board in its decision.10 I will now turn to the
facts and issues presented to me in the dispute at hand.
B. The Current Dispute
In the matter before me, the complaint, as finally amended,
alleges that the Respondent threatened its employees by in-
forming them that it would be futile for them to engage in un-
ion or other concerted activities; by telling unfair labor practice
strikers seeking reinstatement that they were only at the facility
to cause trouble; and by telling those strikers that they would be
treated only as economic strikers who would be contacted when
there were job openings. It is also alleged that the Respondent
orally promulgated and maintained an overly-broad and dis-
criminatory rule prohibiting employees who were working from
telling striking employees where the Respondent’s crews were
working; and orally promulgated and maintained another
overly-broad and discriminatory rule prohibiting employees
from speaking with union agents.
Further, the complaint alleges that the Respondent interro-
gated employees about their union or other concerted activities;
created an impression among its employees that their union and
other concerted activities were under surveillance; and threat-
ened to physically harm employees because they had engaged
in union or other concerted activities.
Finally, the complaint alleges that in April or May 2008,
employee Leobardo Delgado engaged in an unfair labor prac-
tice strike; then made an unconditional offer to return to work
on August 1, 2008; after which the Respondent unlawfully
failed to reinstate him.
In reality, the current dispute is merely a continuation and
“spill over” from the original dispute, which led to the Board’s
decision mentioned above. Many of the principals remain the
same, including Union Organizer Brady Bratcher, Superinten-
dent Matt Pickens,11 Assistant Superintendent Javier Loya
Bando, Foreman Jesus Guerrero, Foreman Juan Quintero, and
employee Leobardo Delgado. The actions of these individuals
in the matter before me can not be viewed in a vacuum. Those
actions must be viewed in light of their involvement in the ear-

9 By possessing actual authority from Pickens, Perez served as the
Respondent’s agent in giving directions to Bratcher.
10 It should be noted that a number of the allegations in the earlier
complaint were also dismissed.
11 Throughout the hearing Matt Pickens was also referred to by his
nickname as “Mateo.”
POST TENSION OF NEVADA, INC. 829
lier case. For example, Brady Bratcher continues his efforts to
organize the Respondent, and Leobardo Delgado remains a
supporter of the Union.
1. The strikers seek employment
As noted above, the strike that began on September 20, 2007,
was found by the Board to be an unfair labor practice strike.
Further, the Board held that the strikers made an unconditional
offer to return to work on September 26, 2007, and the Respon-
dent violated the Act by failing to reinstate them, and by requir-
ing them to sign a document entitled “preferred hire list.”
However, as found by Judge Park and affirmed by the Board in
its decision, the Respondent on December 11, 2007, began
laying off the strike replacements it had hired and replacing
them with the unfair labor practice strikers. Also, the judge,
with the Board adopting, accepted the Respondent’s unrebutted
evidence that it had experienced a decrease in work in the latter
half of 2007, which declining work load precluded replacement
of all the striking employees. Post Tension of Nevada, Inc.,
supra at fn. 18.
As of March 6, 2008,12 a number of the strikers had still not
been replaced. They remained on strike, regularly gathering
together with Brady Bratcher to picket at the various jobsites
where the Respondent’s crews were working. On that date, the
strikers were picketing at a jobsite where the foreman of the
Respondent’s crew was Juan Qintero. Striker Alfonso Ance
Salazar testified that while at the jobsite, Qintero told him that
it “looked like the Company was hiring personnel,” and that he
should go to the office the following day and ask for work.
Further, Qintero allegedly said that Salazar should ask to be
placed on Qintero’s crew.
On the morning of the following day, March 7, a number of
strikers, accompanied by Bratcher, appeared at the Respon-
dent’s office with the apparent intention of applying for work.
Bratcher informed Matt Pickens that the striking employees
were at the office to seek employment, as Foreman Qintero had
said the day before that the Respondent would be hiring. In
response, Qintero denied that he had said anything of the kind.
It is important to note that during these conversations Matt
Pickens was speaking in English, while the striking employees
speak mostly Spanish. Bratcher, who is bilingual, was translat-
ing, along with Foreman Javier Loya Bando Jr., who is the son
of the Respondent’s assistant superintendent.
Salazar testified that Pickens told the strikers to leave the of-
fice, that there was no work, and if at any point work was avail-
able, he would “call [the strikers] personally from the list . . . in
order on the work list.” Salazar testified that he understood
what Pickens was saying because Bratcher translated Pickens’
words into Spanish after they left the office. Counsel for the
Respondent then objected to Salazar’s testimony as hearsay. I
sustained the objection, as the testimony of Salazar was being
proffered for the truth of the matter asserted. Since Pickens’
English words were allegedly understood by Bratcher, who
translated them into Spanish for the benefit of the strikers, only
Bratcher could testify as to what Pickens had said, and not have
the testimony constitute hearsay.

12 Hereafter all dates are in 2008, unless otherwise indicated.
Striker Damian Garcia was also at the office seeking work.
He testified that after Foreman Qintero denied telling anyone
that there was work available, Matt Pickens said that he “would
be calling [the strikers] as work became available . . . would be
calling [the strikers] as per the order on the waiting list.” Gar-
cia indicated that Javier Loya Bando Jr. was doing the translat-
ing of Pickens’ statements from English into Spanish. There
was no hearsay objection to Garcia’s testimony, although
clearly it was being offered for the truth of the matter asserted.
As there must be an affirmative objection to hearsay testimony
in order to exclude it, and since there was no such objection, I
will accept this testimony from Garcia as being offered and
admitted for the truth of the matter asserted.
Striker Leobardo Delgado was another employee present to
seek work. He testified that Qintero denied telling any of the
strikers that there was available work. According to Delgado,
Pickens then told Bratcher that “he was only there to cause
problems, that he was just there as a stupid . . . like a stupid
person.” Delgado indicated that somebody was translating into
Spanish, maybe “Javier Loya,” but he wasn’t sure just who. In
any event, there was no hearsay objection. Accordingly, I will
accept this testimony from Delgado as being offered and admit-
ted for the truth of the matter asserted.
Brady Bratcher also testified about the events at the Respon-
dent’s office. According to Bratcher, Quintero denied telling
any of the strikers that work was available. At that point, Matt
Pickens allegedly said that “when he hires, he’s going to hire
off the preferential hiring list.” Further, Bratcher claims that
after he pressed Pickens about the list, Pickens replied, “Brady,
you’re not an idiot, but you’re acting like one right now.”
Pickens then continued, telling Brady, “You guys have had
your day in court. . . . Why do you come down here like this
. . . . You guys are wanting to cause trouble.” According to
Bratcher, after he left the office, he told the assembled strikers
what Pickens had said.13
At the time of this hearing, Matt Pickens was no longer em-
ployed by the Respondent. He did not testify at this proceed-
ing. Javier Loya Jr. testified that Pickens asked him to trans-
late. He recalled Pickens saying, “They weren’t hiring yet, but,
as soon as they hired, they would get them off the list, from
their list.”
There is no dispute that as of March 7, there remained unfair
labor practice strikers who had not yet been reinstated. How-
ever, the judge in the earlier case determined that the Respon-
dent’s declining work load precluded replacement of all the
striking employees at that time. No evidence was offered by
counsel for the General Counsel to establish that the Respon-
dent’s work load had increased, or that the Respondent had not
immediately reinstated the remaining strikers upon having
available positions. To the contrary, the Respondent’s vice
president, John Hohman, testified that as of the date of the hear-
ing all the striking employees who went on strike on September
20, 2007, had been offered reinstatement. This testimony re-
mained unrebutted.

13 I assume by the “day in court” reference, what is meant is the ear-
lier unfair labor practice hearing before Judge Parke.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD830
The General Counsel alleges in paragraph 5(a)(2) that on
March 7, the Respondent violated Section 8(a)(1) of the Act
when Matt Pickens threatened striking employees seeking rein-
statement that they would be treated only as economic strikers
and that the Respondent would contact them when the Respon-
dent had job openings. Counsel for the General Counsel argues
correctly that an employer may not describe to strikers a conse-
quence of a strike that is inconsistent with their rights. Kings-
bridge Heights Rehabilitation Care Center, 353 NLRB 826
(2008); Grinnell Fire Protection Systems, 328 NLRB 585
(1999). However, I do not believe that this is what the evi-
dence shows in the matter before me.
There is no credible evidence that the Respondent had job
openings or that it was hiring when a number of the strikers
arrived at its office the morning of March 7. Striker Salazar
testified that Foreman Juan Quintero told him the day before
merely that it “looked like” the Respondent was hiring and that
he should go to the office and ask for work. When confronted
by Salazar and other strikers the following day, Qintero denied
making any such statement. In any event, Pickens denied that
there was any hiring going on. As counsel for the General
Counsel has offered no evidence to the contrary, I will assume
that Pickens’ statement was accurate when given.
Damien Garcia credibly testified that Pickens told the strik-
ers that he would be calling them as work became available in
their “order on the waiting list.” Garcia’s testimony was un-
contested, and I accept it as accurate. However, I do not be-
lieve that Pickens’ statement was either misleading or unlawful.
By that date, the strike replacements had all been terminated.
Some of the strikers had been reinstated, with the others not
being recalled simply because the Respondent’s reduced work
load precluded their immediate reinstatement. The strikers had
originally signed a “preferred hire list” on September 26, 2007,
offering to unconditionally return to work. As noted, the Board
has determined in the earlier case that requiring the strikers to
sign such a list was unlawful since they were unfair labor prac-
tice strikers who were entitled to immediate reinstatement.
As of March 7, it appears that the Respondent had done what
the law required it to do, namely to terminate the strike re-
placements and to reinstate those unfair labor practice strikers
who could be reinstated, consistent with the Respondent’s re-
duced need for labor because of its declining work load. That
was essentially what Pickens was telling the strikers when he
said that he would call them as work became available in their
“order on the waiting list.” Of course, the Act does not require
that the Respondent offer strikers jobs that do not exist because
of economic conditions. Also, I see nothing unlawful about
Pickens using a “waiting list” with the remaining strikers’
names on it so as to call them back to work in the order in
which they signed the list, once the economic conditions war-
rant it. I assume the “waiting list” is actually the original “pre-
ferred hire list” the strikers signed on September 26, 2007.
However, the name of the list is of no importance. What Pick-
ens was saying, and what the strikers should have understood,
was that as soon as jobs were available he would be calling
them back to work in the order that they had previously listed
their names.
I am of the view that in his conversation with strikers on
March 7, Pickens did not mislead, misinform, or untruthfully
describe the consequences of their situation as unfair labor
practice strikers when he spoke to them about their request to
return to work. As his statements did not violate the Act, I shall
recommend that complaint paragraph 5(a)(2) be dismissed.
In complaint paragraph 5(a)(1), the General Counsel alleges
that on March 7, Matt Pickens threatened employees by inform-
ing them that it would be futile for them to engage in union or
other concerted activities, and by telling unfair labor practice
strikers seeking reinstatement that they were only at the Re-
spondent’s facility to cause problems or trouble. It appears
from counsel for the General Counsel’s posthearing brief that
he is relying on the alleged statements made by Matt Pickens
on the morning of March 7, to establish that the employees
were being informed that their attempts to exercise their Sec-
tion 7 rights as unfair labor practice strikers, to be reinstated,
were being pursued in vain. However, as I noted above, I
found nothing Pickens said to strikers that morning that would
reasonably mislead, misinform, or untruthfully describe the
consequences of their situation as unfair labor practice strikers.
Based on what had transpired to that date, they should have
understood that when work was available they would be re-
called to their former jobs by Pickens, in the order in which
they had signed the “waiting list.” Pickens told them that at the
moment the Respondent was not hiring, as there was no work
available.
The unfair labor practice strikers in Pickens’ office on March
7, had already seen some of their fellow strikers reinstated and
had seen the strike replacements terminated. These events did
not happen in a vacuum, and the remaining strikers should rea-
sonably have had some idea of the way the process was work-
ing. In any event, in my opinion Pickens said nothing that
should have reasonably led the unfair labor practice strikers
who were in the Respondent’s office seeking reinstatement to
view their exercise of protected activity as futile.
The continuation of the General Counsel’s argument is the
contention that Pickens told the strikers that they were only at
the Respondent’s office to cause problems or trouble. How-
ever, the testimony from the witnesses called by counsel for the
General Counsel was at best inconsistent and at worst contra-
dictory. Strikers Alfonso Ance Salazar and Damian Garcia
testified about Pickens’ statements on the morning of March 7,
and yet did not mention anything about the alleged statement
concerning causing trouble or problems.
Striker Leobardo Delgado was also present during the con-
versation in question. While he wasn’t certain about who was
doing the translating, he recalled being told that Pickens in
addressing Brady Bratcher had said that Bratcher was “like a
stupid person.” Bratcher testified that Pickens told him that
while Bratcher was not an “idiot,” he was “acting like one.”
However, of the four witnesses called by counsel for the Gen-
eral Counsel who testified about the events of that day,
Bratcher was the only one to indicate that Pickens added to his
statement the comment, “You guys are wanting [sic] to cause
trouble.”
It is obvious from a view of the previous case, as well as the
one at hand, that Bratcher and Pickens were not on good terms.
POST TENSION OF NEVADA, INC. 831
I am certainly not surprised that Pickens would tell Bratcher
that he was “stupid,” or that Bratcher was causing “trouble or
problems.” However, I do think it unlikely that Pickens would
have directed that remark to the assembled strikers. The fact
that none of the strikers testified that such a remark was di-
rected at them is especially significant, as I am convinced that
had Pickens directed such a statement at the strikers that
Bratcher would have quickly interpreted the remark for the
strikers’ benefit.
Bratcher is actively engaged in a hotly contested campaign to
organize the Respondent. His interest in wanting to have the
strikers view Pickens in the worse possible light is obvious. As
the strikers who testified recalled no such statement being made
by Pickens and directed at them, I am of the view that Bratcher
has exaggerated and embellished the remarks make by Pickens.
I believe that the credible evidence shows that it is more likely
than not that Pickens accused Bratcher of causing trouble or
problems, and that the comment was not directed at the strikers.
Since Bratcher was not an employee of the Respondent, was
not a job applicant at the time, and any comment about prob-
lems or trouble was directed at him individually and not at the
employee/strikers, I conclude that there was nothing coercive
about the language used.
I find that any statements made by Matt Pickens on March 7,
did not threaten striking employees, advise them that their con-
certed activities were futile, or that they were causing trouble or
problems. Accordingly, I shall recommend that complaint
paragraph 5(a)(1) be dismissed.
The General Counsel alleges in complaint paragraph 5(b)
that in March 2008, Foreman Juan Quintero orally promulgated
and since then has maintained an overly-broad and discrimina-
tory rule prohibiting employees from telling striking employees
where the Respondent’s crews were working. This is alleged to
constitute a violation of Section 8(a)(1) of the Act. The em-
ployee to whom this alleged discriminatory rule was directed
was Leobardo Delgado.
According to Delgado’s testimony, about 3 days after the
March 7 incident where the strikers confronted Matt Pickens
about returning to work, he was engaged in a conversation with
Juan Quintero at the Chevron station. Quintero allegedly men-
tioned to Delgado that there might be a job available on his
crew, since one of the employees might be leaving to go to
Mexico. Quintero said that Delgado would be receiving a call
from one of the Respondent’s foremen if the job became avail-
able. Delgado testified that Quintero then instructed him “not
to go around telling Brady Bratcher where the crews [are] to be
working, so that they wouldn’t be picketing them.” Subse-
quently, Delgado received a phone call from Javier Loya Bando
Sr., who offered him a job. Delgado accepted and returned to
work with the Respondent on about March 20, 2008.
Juan Quintero testified that during the period that Leobardo
Delgado was on strike, he never directed Delgado not to tell
Brady Bratcher where employees were working. However, I
credit Delgado’s testimony over that of Quintero. While nei-
ther man seemed to have a good recall of the events in question,
Delgado’s testimony regarding the remark about Bratcher
seemed to be in context with the rest of the events that sur-
rounded the strike and the effort to return the strikers to their
jobs. As to this particular remark alleged made by Quintero,
Delgado’s testimony did have the ring of authenticity to it.
Certainly, a rule prohibiting contact with a union organizer,
such as Bratcher, is unlawful as it is intended to interfere with
the Section 7 rights of employees. Airport 2000 Concessions,
LLC, 346 NLRB 958, 959 (2006). Even absent evidence of
enforcement, the mere maintenance of a rule that would likely
have a chilling effect on Section 7 rights is unlawful. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52
(D.C. Cir. 1999). In fact, such a rule is unlawful on its face.
The Loft, 277 NLRB 1444, 1461 (1986); Automatic Screw
Products Co., 306 NLRB 1072 (1992).
Quintero instructed Delgado not to tell Brady Bratcher where
the employees were working so as to avoid having the union
pickets appear on the jobsites. As the strikers and others had
the Section 7 right to engage in this sort of union activity, and
as Delgado, as a working employee, also had the Section 7 right
to support their picketing activity and to communicate his sup-
port to them, Quintero’s efforts to prevent this activity were
unlawful. By orally promulgating and maintaining an overly-
broad and discriminatory rule that prohibited employees who
were working from talking with a union organizer or from tell-
ing striking employees where the Respondent’s crews were
working, Quintero was in violation of the Act.
Accordingly, I conclude that the Respondent has violated
Section 8(a)(1) of the Act, as alleged in paragraphs 5(b) and 7
of the complaint.
2. Confrontation between Delgado and Guerrero
In complaint paragraph 5(c)(1)–(4), the General Counsel al-
leges that the Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union activity, by orally
promulgating and maintaining an overly-broad and discrimina-
tory rule prohibiting employees from speaking with union
agents, by creating an impression among its employees that
their union activities were under surveillance, and by threaten-
ing to physically harm employees because they engaged in
union activity. All these allegations relate directly to a confron-
tation on April 2, 2008, between Leobardo Delgado and his
foreman, Jesus Guerrero.
As noted earlier, Leobardo Delgado, an unfair labor practice
striker, received a call from the Respondent to return to work,
which he did on approximately March 20, 2008. (GC Exh. 3.)
Delgado testified that he proceeded to work on the crews of a
number of foremen and at different jobsites, when in early
April he found himself working at the Rachel Ridge jobsite for
foreman Jesus Guerrero. While on that jobsite, the two men got
into an altercation over a “key” used to remove saw blades.
These saws are used to cut the tension cables that the crews lay
in concrete. Delgado had apparently used the key the day be-
fore, and Guerrero asked him to retrieve it. However, Delgado
informed Guerrero that he had placed the key in the tool box,
which the key then fell to the bottom of the box and “got lost.”
Upon learning that the key was lost and that the saw blade
could not be replaced, Guerrero apparently became incensed.
According to Delgado, Guerrero tried to hit him with a can of
spray paint. Delgado avoided being hit by the spray can, but
Guerrero did manage to spray some paint on his shirt. At about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD832
this time the key was located and Guerrero calmed down.
Delgado took this opportunity to call Brady Bratcher on his cell
phone. Delgado testified that he spoke to Bratcher at about
10:30 for about 5 minutes. He told Bratcher what had just oc-
curred on the jobsite. Apparently at that point, Guerrero no-
ticed that Delgado was on the phone and asked, “Who the fuck
[he] was talking to.” Delgado responded that he was talking
with Bratcher. He testified that Guerrero then said he should
“not be talking to that fucking old man from the Union.”
Guerrero called the Respondent’s office, apparently to report
what had transpired. Approximately 30 minutes later Matt
Pickens arrived at the jobsite. Pickens separately interviewed
both Delgado and Guerrero as to what had happened, and as he
did not speak Spanish, he used the Respondent’s secretary,
Elizabeth Palacios, who over the telephone acted as a translator.
Through Palacios, Pickens told both Delgado and Guerrero that
the Respondent’s assistant superintendent, Javier Loya Bando
Sr., would meet with the two men the following morning to sort
things out.
However, according to Delgado, after Pickens left the job-
site, Guerrero approached Delgado and said that, “If they fired
him [over the incident] it would be [Delgado’s] fault, and he
would come to [Delgado’s] house, seek [Delgado] out at [his]
house and kill [Delgado].” The following day, Delgado arrived
at the Respondent’s office early, expecting to deal with the
events of the previous day. However, Guerrero was not present
and Bando told him to go to work, and the matter would be
resolved later.
Neither Matt Pickens nor Jesus Guerrero was employed by
the Respondent at the time of the hearing, and neither man
testified. Elizabeth Palacios did testify, and indicated what
both Guerrero and Delgado had told Pickens at the jobsite the
day of the altercation. For the most part, she corroborated
Delgado’s testimony about what he told Pickens had occurred
on the jobsite. She did add that about 5 minutes after she fin-
ished translating the respective versions of the events from
Guerrero and Delgado for Pickens, she received a call from
Guerrero, who wanted to know what Delgado had told Pickens.
According to Palacios, Guerrero also complained that whenever
he tells Delgado something, Delgado repeats it to Brady
Bratcher, and that Delgado tells Bratcher “everything that [is]
going on.” She testified that she told Guerrero that if he
thought that Delgado was calling Bratcher, that he should let
Matt Pickens know at the meeting that the men were supposed
to have the following morning. About 3 to 4 weeks after the
incident at Rachel Ridge, Palacios wrote an account of her con-
versations with Delgado and Guerrero. (R. Exh. 3.)
As counsel for the General Counsel points out in his post-
hearing brief, an employer’s threat or attempt to physically
harm an employee as a result of that employee’s union activity
is an unfair labor practice. Such a threat or attempt to harm
would reasonably tend to interfere with the employee’s free
exercise of Section 7 rights. Counsel cites a number of cases
that stand for that proposition. However, the problem with
counsel’s argument is that in the case at hand, the evidence
does not show that any threats or attempts to harm made by
Guerrero and directed towards Delgado were in any way based
on animosity towards Delgado because of his union activity.
Assuming Delgado’s version of events was accurate, there is
nothing to establish that the argument between Delgado and
Guerrero, Guerrero’s attempt to hit Delgado with a can of spray
paint, or Guerrero’s subsequent death threat were in anyway in
response to Delgado’s union activity. The cases cited by coun-
sel for the General Counsel are all distinguishable based on the
facts before me.
The altercation between Guerrero and Delgado was the result
of a lost key for a saw blade. As the saw was used to cut cable,
obviously essential for the performance of the Respondent’s job
of fabricating and installing stress cables in the concrete slabs
supporting homes under construction, an inoperable saw would
surely stop the crew from performing its work until the old
blade could be replaced. All the evidence points to this reason
for Guerrero becoming so upset with Delgado, who was the last
person having possession of the key. Time is always a very
important factor in the construction industry, and the potential
delay caused by the lost key would likely have upset Guerrero
considerably. Of course, Guerrero acted in an immature fash-
ion in attempting to hit Delgado with the spray paint can and by
spraying Delgado’s shirt with paint. Nevertheless, there is no
probative evidence to show that there was any other reason for
Guerrero’s tirade, including hostility to Delgado’s union activ-
ity.
Similarly, there is no probative evidence to establish that
Guerrero threatened to kill Delgado because he allegedly dis-
liked Delgado’s union activity. Clearly Guerrero was upset
with Delgado for losing the key. However, Guerrero became
even more incensed when he learned that Delgado had given
Matt Pickens his own version of the altercation at Rachel
Ridge. Guerrero was obviously upset about the turn of events
that had occurred, and was worried that he might be fired for
something that he did or said. It was in that atmosphere that he
confronted Delgado and told him that if he (Guerrero) were
fired, he would go to Delgado’s home and kill him. Once
again, what appeared to upset Guerrero was the incident with
the key and his concern that he might be terminated because of
what Delgado had told Pickens. There was no probative evi-
dence to show that animosity towards Delgado’s union activity
caused Guerrero to make a threat to kill Delgado.
I do not believe that Guerrero’s attempt to hit Delgado with a
spray can or threat to kill him constituted a violation of the Act.
Obviously, these were improper and potentially criminal acts.
However, they were simply not unfair labor practices. There-
fore, I shall recommend that complaint paragraph 5(c)(4) be
dismissed.
The General Counsel has alleged that Guerrero’s conduct at
the Rachel Ridge project also created an unlawful impression of
surveillance. As noted, after Guerrero tried to hit him with the
spray paint can, Delgado called Brady Bratcher. Seeing him on
the phone, Guerrero asked him “who the fuck [he was] talking
to.” Upon learning that it was Bratcher, Guerrero responded
that Delgado should not be talking with that “fucking old man
from the Union.” From that language, it certainly did appear
that Guerrero was interested in making sure Delgado did not
communicate with union officials. My conclusion is reinforced
by the telephone conversation that Guerrero had with Elizabeth
Palacios that same day when he told her that Delgado was tell-
POST TENSION OF NEVADA, INC. 833
ing Brady Bratcher everything that he heard or learned was
going on.
As counsel for the General Counsel points out, the test for
whether an employer creates an unlawful impression of surveil-
lance is whether, under the circumstances, an employee could
reasonably conclude that his union activities are being moni-
tored. Mountaineer Steel, Inc., 326 NLRB 787 (1998), enfd. 8
Fed. Appx. 180 (4th Cir. 2001). Delgado certainly had reason
to believe that his conversations with the Union were being
observed. As noted above, before being rehired, he had been
warned by Foreman Juan Quintero not to tell Bratcher or the
strikers where the crews were working. He was now being
questioned and chastised by Foreman Guerrero not to talk with
Bratcher. Based on what the two foremen said to him, Delgado
had good reason to worry about the Respondent becoming up-
set with him when he was observed talking with Bratcher. The
Board has held that under the Act “[e]mployees should not
have to fear that ‘members of management are peering over
their shoulders, taking note of who is involved in union activi-
ties, and in what particular ways.’” Conley Trucking, 349
NLRB 308 (2007), quoting Fred’k Wallace & Son, Inc., 331
NLRB 914 (2000).
I conclude that Guerrero was engaged in creating an unlaw-
ful impression of surveillance when he asked Delgado who he
was talking with on the Rachel Ridge project. Because of the
previous warring that he had received from Quintero, and the
language used by Guerrero when he learned that Delgado was
talking with Bratcher, Delgado had good reason to believe that
his union activity was under surveillance. Accordingly, I con-
clude that the Respondent violated Section 8(a)(1) of the Act,
as alleged in paragraphs 5(c)(3) and 7 of the complaint.
Also, when Guerrero, having heard that Delgado was talking
with Bratcher, told Delgado not to talk to the “fucking old man
from the union,” he was essentially orally promulgating and
maintaining an overly-broad and discriminatory rule prohibit-
ing employees from speaking to union agents. His actions were
similar to and a continuation of Juan Quintero’s admonition to
Delgado before he was rehired not to tell Bratcher or the strik-
ers where the crews were working. Obviously, such conduct
restrains, coerces, and interferes with employees’ ability to
exercise their Section 7 rights. Airport 2000 Concessions, LLC,
supra. Accordingly, I conclude that the Respondent violated
Section 8(a)(1) of the Act, as alleged in paragraphs 5(c)(2) and
7 of the complaint.
The General Counsel alleges that the same set of circum-
stances also produced an unlawful interrogation of Delgado by
Guerrero, specifically the language, “Who the fuck [are you]
talking to?” However, whether this question on its face consti-
tuted unlawful interrogation of protected activity is not clear
cut.
In determining whether a supervisor’s questions to an em-
ployee about his union activities were coercive under the Act,
the Board looks to the “totality of the circumstances.” Ross-
more House, 269 NLRB 1176 (1984), affd. sub nom. HERE
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Westwood
Health Care Center, 330 NLRB 935 (2000), the Board listed a
number of factors considered in determining whether alleged
interrogations under Rossmore House were coercive. These are
referred to as “Bourne factors,” so named because they were
first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964). These factors include the background of the parties’
relationship, the nature of the information sought, the identity
of the questioner, the place and method of interrogation, and
the truthfulness of the reply.
Of course, Guerrero was Delgado’s foreman, and, as noted
earlier, a statutory supervisor. The question occurred on the
jobsite, just after the two men had been involved in a very
heated altercation. The question merely asked, although in a
profane way, with whom Delgado was talking. Delgado likely
could have named anyone, but truthfully indicated Brady
Bratcher. As noted above, I have already found the question to
constitute a violation of the Act as creating the impression of
surveillance and, with Guerrero’s subsequent statement, creat-
ing an unlawful rule prohibiting Delgado from speaking with
Bratcher. Still, I do not believe the question constituted unlaw-
ful interrogation.
The question occurred on the jobsite while Delgado was ex-
pected to be working. Guerrero as the Respondent’s foreman
surely had a legitimate interest in ensuring that Delgado was
performing his work during working time. Of course, the at-
mosphere was still highly charged, following the attempt by
Guerrero to hit Delgado with the spray can. But, I have found
that Guerrero’s attempt to hit Delgado was unrelated to his
union activities.
In any event, in my view, the most significant factor in find-
ing that the question did not constitute unlawful interrogation
was the lack of any attempt on the part of Guerrero to follow up
the question. Delgado answered the question, admitting that he
was talking with Bratcher. Guerrero’s response was to order
him not to talk with that “fucking old man from the union,”
which comment I have already determined was unlawful.
However, that ended the conversation. Guerrero did not try and
follow his question up with any additional inquires, such as,
“What did you tell him?” or “What did he say?” Had he done
so, I would have concluded that an unlawful interrogation had
occurred. He only asked the single question. In the absence of
such further inquires, I must find that under the “totality of the
circumstances,” no unlawful interrogation had occurred. Ac-
cordingly, I shall recommend that complaint paragraph 5(c)(1)
be dismissed.
3. Delgado goes on strike
On April 10, 2008, about a week after the altercation be-
tween Delgado and Guerrero, Delgado went on strike for the
second time. The General Counsel alleges in complaint para-
graph 6(b) that this was an unfair labor practice strike, and
alleges in paragraphs 6(c)–(d) and 8 that the Respondent’s re-
fusal to reinstate Delgado after he made an unconditional offer
to return to work constituted a violation of Section 8(a)(1) and
(3) of the Act.14
As noted above, Delgado originally went out on strike with
other laborers on September 20, 2007. The Board in the earlier
case found Delgado and the other strikers to be unfair labor

14 These complaint paragraphs were added as an amendment by
counsel for the General Counsel during the hearing. (GC Exh. 2.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD834
practice strikers. Delgado and the other strikers made an un-
conditional offer to return to work on September 26, 2007, and
Delgado was reinstated on about March 20, 2008. He remained
on the job for approximately 20 days, when he went back on
strike on April 10, 2008.
According to Delgado, he was sick for the week prior to
April 10, but continued to work every day. On approximately
that date, he was loading tools onto a truck at the Respondent’s
facility when he was approached by the Respondent’s assistant
superintendent, Javier Loya Bando Sr. Delgado testified that
Bando told him that one of the foremen had said that Delgado
“wasn’t worth a fuck to work with,” and that Delgado “wasn’t
turning out the work at the same rate as the other people.”
Delgado told Bando that he was turning out the work at the
same rate as the other laborers.15 Then Delgado told Bando
that he was going home “to get a sheet [of] paper.” He testified
that he further said, “I was going to go back on strike because I
couldn’t stand being told that I wasn’t worth a fuck to work
with.” Delgado was then prompted by counsel for the General
Counsel, who asked him if there were any other reasons he
gave Bando for going on strike. In response, Delgado added,
“Because Jesus Guerrero had threatened my life and also be-
cause Juan Quintero had also told me not to run around telling
Brady Bratcher where we were going to be working, where the
crews were going to be working.”
Delgado returned home and retrieved a document that Brady
Bratcher had previously prepared. He handed the document to
Bando. It read as follows: “I LEOBARDO DELGADO
HEREBY NOTIFY POST TENSION OF NEVADA INC.
THAT I AM ON AN UNFAIR LABOR PRACTICE STRIKE
UNTIL FURTHER NOTICE.” (GC Exh. 4.) According to
Delgado, Bando received the document, but seemed not to
really be paying attention.
From April 10 through the end of July 2008, Delgado re-
mained on strike. During that time he went with Bratcher and
other strikers to the Respondent’s jobsites where he participated
in picketing and strike activity. However, he testified that,
thereafter, he decided that he “want[ed] to work,” and so he
asked Bratcher to draft a document for him offering to return to
work unconditionally. On August 1, 2008, Delgado and
Bratcher arrived at the Respondent’s facility and handed the
document to Ken Saffin, the Respondent’s manager.16 The
document reads as follows: “I LEOBARDO DELGADO
HEREBY OFFER TO END MY UNFAIR LABOR
PRACTICE STRIKE WITH POST TENSION OF NEVADA
INC. UNCONDITIONALLY AND RETURN TO WORK
IMMEDIATELY.”
According to Delgado, Saffin accepted the document and
told Delgado to sign a “sheet of paper,” from which he would
be “called up for work when a job—a work opportunity ap-
peared.” The “sheet of paper” that Delgado signed on August
1, 2008, at Saffin’s request was headed “preferential hire list.”

15 While there was much testimony from various witnesses at the
hearing as to whether or not Delgado was a productive employee, I
need not make any such determination, as Delgado was never disci-
plined or discharged for poor work performance.
16 Saffin is an admitted supervisor and agent of the Respondent.
Delgado’s name was the only one on the list. (GC Exh. 7.) On
August 5, 2008, the Respondent sent Delgado a letter offering
to “put you back to work in your position immediately.” (GC
Exh. 5.) However, as of the first day of the hearing, which was
August 6, 2008, Delgado had not yet received the letter.
It is the General Counsel’s position that Delgado’s decision
to go on strike on April 10, 2008, was based in part on certain
unfair labor practices committed by the Respondent, which are
alleged in the complaint. Therefore, the General Counsel con-
tends that Delgado was engaged in an unfair labor practice
strike and the Respondent was obligated to immediately rein-
state him upon his making an unconditional offer to return to
work as of August 1, 2008. Counsel for the General Counsel
argues that by failing to offer Delgado reinstatement for a pe-
riod of approximately 5 days, the Respondent has violated the
Act.
On the other hand, the Respondent takes the position that
Delgado’s decision to strike was unrelated to any alleged unfair
labor practices committed by the Respondent. Therefore, it is
argued that as an “economic striker,” Delgado is only entitled
to reinstatement upon making an unconditional offer to return
to work, when a position becomes available. Further, the Re-
spondent emphasizes that in the earlier decision, the Board
adopted Judge Parke’s finding that the Respondent’s declining
work load precluded immediate replacement of all striking
employees. According to the unrebutted testimony of the Re-
spondent’s vice president, John Hohman, on the date that
Delgado went on strike for the second time, there were still
unfair labor practice strikers from the original strike that had
not yet been reinstated because of the Respondent’s decreased
work load. However, he testified that as of the second day of
this hearing, August 7, 2008, all of the remaining unfair labor
practice strikers from the September 20, 2007 strike had been
offered reinstatement.
It is well established Board law that a work stoppage is con-
sidered an unfair labor practice strike “if it is motivated, at least
in part, by the employer’s unfair labor practices, even if the
economic reasons for the strike were more important than the
unfair labor practice activity.” However, it is not sufficient to
merely show that the unfair labor practices preceded the strike.
There must be a “causal connection” between the unfair labor
practices and the strike. Golden Stevedoring Co., 335 NLRB
410, 411 (2001).
In his posthearing brief, counsel for the Respondent relies
heavily on the Board’s holding in C-Line Express, 292 NLRB
638, 639 (1989), where the Board looked to the strikers’ state
of mind and found a lack of evidence that the strikers were
motivated to prolong the strike by coercive employer state-
ments on the picket line. Still, when it is reasonable to infer
from the record that an employer’s unlawful conduct played a
part in the decision of employees to strike, the strike is consid-
ered an unfair labor practice strike. Child Development Coun-
cil of Northeastern Pennsylvania, 316 NLRB 1145 fn. 5 (1995),
citing NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir.
1972), cert. denied 419 U.S. 850 (1972) (as long as an unfair
labor practice has “anything to do with” causing the strike, it
will be considered an unfair labor practice strike). In any event,
the burden remains on an employer to show that the strike
POST TENSION OF NEVADA, INC. 835
would have occurred even if the employer had not committed
unfair labor practices. Larand Leisurelies, Inc., v. NLRB, 523
F.2d 814, 820 (6th Cir. 1975).
As I view the evidence in the case at hand in conjunction
with the Board’s decision in the earlier case, I am of the opin-
ion that Leobardo Delgado and Brady Bratcher are trying to
play “gotcha” with the Respondent. Delgado was one of a
number of strikers found by the Board in the earlier case to be
an unfair labor practice striker. He originally went out on strike
with his fellow employees on September 20, 2007; made an
unconditional offer to return to work 6 days later on September
26, 2007; was returned to work by the Respondent on March
20, 2008; remained on the job for only 20 days, when he again
went out on strike on April 10; and unconditionally offered to
return to work again as of August 1, 2008.
Brady Bratcher, who has been actively trying to organize the
Respondent’s business, appears to have been directly involved
in the decisions that Delgado has been making regarding work-
ing and striking. As noted earlier, he prepared both Delgado’s
letter of April 10, announcing that he was going on an “unfair
labor practice strike,” as well as his letter of August 1, making
an unconditional offer to return to work. Delgado speaks Span-
ish, with apparently a very limited understanding of English.
Clearly the technical words used in these letters, such as “unfair
labor practice strike” (GC Exh. 4.) and return to work “uncon-
ditionally” (GC Exh. 6) were “terms of art” in labor relations
that I would certainly expect Bratcher to know, not Delgado.
Frankly, I am highly dubious of Delgado’s motives in striking
the Respondent. I suspect that his decision to go on strike on
April 10, 2008, was more of an organizing tactic than anything
else.
The General Counsel argues that the Respondent’s unfair la-
bor practices “played a part” in Delgado’s decision to go on
strike. This I doubt. Initially, when asked on direct examina-
tion by counsel for the General Counsel how he responded to
Assistant Superintendent Bando’s accusation that one of the
foremen had said he “wasn’t worth a fuck to work with,”
Delgado testified that he told Bando that, “I was going to go
back on strike because I couldn’t stand being told that I wasn’t
worth a fuck to work with.” It was not until counsel for the
General Counsel prompted Delgado by asking him, “Were
there any other reasons you told Javier [Bando] why you were
going on strike?” that Delgado replied, “Yes.” He then listed as
if by rote the unfair labor practices alleged in the complaint,
namely, “also because Jesus Guerrero had threatened my life
and also because Juan Quintero had also told me not to run
around telling Brady Bratcher where we were going to be
working—where the crews were going to be working.”
In prompting Delgado in this way, counsel for the General
Counsel was in essence “leading the witness.” While there was
no objection from Respondent’s counsel and so this leading
testimony was admitted, I find Delgado’s response highly unre-
liable. It appeared to me that Delgado was content to testify
that he told Bando that he was going to strike because he did
not appreciate the comment about not being “worth a fuck to
work with,” until he was reminded through counsel’s leading
question that there was more that he was expected to add to the
reasons that he had given Bando for going out on strike. The
additional answer, of course, involved the Respondent’s alleged
unfair labor practices.
In general I did not find Delgado to be a particularly reliable
witness. His testimony was often disjointed and confusing. He
would frequently say something one way, and then another way
after being questioned by counsel. He seemed particularly
receptive to suggestions from counsel, whether on direct or
cross-examination. As I indicated, this especially manifested
itself when counsel for the General Counsel prompted him
about his conversation with Bando. Therefore, I suspect that
when he told Bando that he was going out on strike, the only
reason offered by Delgado was his offense with being told that
he “wasn’t worth a fuck to work with.”
The circumstances surrounding Delgado’s strike on April 10,
further undermine the General Counsel’s theory. I have, of
course, found that the Respondent did commit a number of
unfair labor practices. However, these unfair labor practices
did not appear to have particularly upset Delgado at the times
they occurred.
On about March 10, 2008, Foreman Juan Quintero cautioned
Delgado, who was still on strike at the time, that if he were
rehired “not to go around telling Brady Bratcher where the
crews [are] working, so that they wouldn’t be picketing them.”
I have found this statement to constitute an unfair labor prac-
tice. However, Delgado was apparently not particularly con-
cerned or upset about the warning, as he subsequently accepted
an offer to return to work, and did in fact return about March
20.
On April 2, 2008, Delgado had the altercation with Jesus
Guerrero. While I have found that Guerrero’s attempt to hit
Delgado with a can of spray paint and subsequent threat to
come to his home and kill him were not unfair labor practices
as unrelated to Delgado’s union activity, Delgado testified that
he was very upset by these events. During the same confronta-
tion, Guerrero questioned Delgado about whom he was talking
with on the phone, which question I have concluded created an
unlawful impression of surveillance, and upon learning that
Delgado was talking with Bratcher, directed Delgado “not to be
talking to that fucking old man from the Union.” Both by cre-
ating an impression of surveillance and by directing Delgado
not to talk with a union agent, the Respondent had committed
unfair labor practices. Yet, while Delgado testified that all
these events greatly upset him, he continued working for the
Respondent for another 8 days, until April 10. He allegedly
spoke with Brady Bratcher about his unhappiness working for
the Respondent, as Bratcher prepared a strike notice for
Delgado’s use. Still, he did not present the notice to the Re-
spondent for over a week after the incidents occurred.
Looking to Delgado’s “state of mind,” I do not believe that
there was a “causal connection” between the unfair labor prac-
tices committed by the Respondent and Delgado’s decision to
strike on April 10. C-Line Express, supra. Until prompted by
counsel for the General Counsel’s follow-up question, Delgado
testified that he told Bando that, “I was going to go back on
strike because I couldn’t stand being told I wasn’t worth a fuck
to work with.” In my view, that was really the sole reason why
Delgado decided to go back on strike. I do not credit the addi-
tional reasons that he added after counsel’s prompt. Certainly,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD836
based on the sequence of events, it appears that the only reason
for his strike action was Bando’s comment about Delgado not
being “worth a fuck to work with.” The actual unfair labor
practices committed by the Respondent’s foremen had all oc-
curred at least a week prior to Delgado’s presentation of the
strike notice to Bando. He was apparently unperturbed by these
unfair labor practices, as he took no affirmative action until he
felt insulted by Bando’s comment. Then he acted immediately.
It seems that comment, and nothing else, caused Delgado to
strike. As such, the strike that Delgado engaged in on April 10,
2008, does not constitute an unfair labor practice strike.
While the strike notice signed by Delgado and presented to
Bando on April 10, specifically calls the action an “UNFAIR
LABOR PRACTICE STRIKE,” that language is certainly not
controlling. The notice was drafted by Brady Bratcher, who I
believe was attempting to create a situation that adversely af-
fected the Respondent to the greatest extent possible. After all,
Bratcher was engaged in a long-running effort to organize the
Respondent. Any pressure that he could bring to bear against
the Respondent would certainly be to the Union’s benefit.
Bratcher had been involved in Delgado’s and the other employ-
ees’ original decision to strike and subsequently request rein-
statement. He was again involved in Delgado’s second deci-
sion to strike and subsequently request reinstatement. I believe
that to a certain extent Bratcher was attempting to “game” the
system. In any event, while the original strike was an unfair
labor practice strike, I do not believe that Delgado’s second
strike was in the same category.
From the credible record evidence, I conclude that the Re-
spondent’s unlawful conduct did not reasonably pay a part in
Delgado’s decision to strike on April 10, 2008. Child Devel-
opment Council of Northeastern Pennsylvania, supra. There-
fore, I conclude that the strike engaged in by Delgado on April
10, was not an unfair labor practice strike.
Concomitantly, as an “economic striker,” the Respondent
was under no obligation to immediately reinstate Delgado to his
former or substantially equivalent position of employment upon
his unconditional offer to return to work, with the requirement
that any strike replacement for him be discharged. Nor was
there anything improper about requiring Delgado to sign a
“preferential hire list” on August 1, 2008, when he offered to
return to work unconditionally. (GC Exh. 7.)
In any event, it should be noted that Delgado was offered re-
instatement on August 5, 2008, 4 days after he submitted the
letter on August 1, offering to return to work unconditionally.
(GC Exhs. 5 & 6.) Further, no evidence was offered to estab-
lish that any position was available for Delgado earlier than
August 5, or that a strike replacement had been hired to replace
him, or that the Respondent’s economic situation had improved
since the Board in the earlier case adopted the judge’s finding
that the Respondent had experienced a decrease in work.
Accordingly, I shall recommend that complaint paragraphs
6(b), (d), and 8 be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Post Tension of Nevada, Inc., Phoenix,
Arizona, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, District Council of Iron Workers of the State
of California and Vicinity, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has
violated Section 8(a)(1) of the Act.
(a) Orally promulgating and maintaining an overly-broad and
discriminatory rule that prohibited employees who were work-
ing from telling striking employees where crews of the Re-
spondent’s employees were working.
(b) Orally promulgating and maintaining an overly-broad
and discriminatory rule that prohibited employees from speak-
ing to agents of the Union.
(c) Creating an impression among its employees that their
union activities or other protected concerted activities were
under surveillance by the Respondent.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.17
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Post Tension of Nevada, Inc., Phoenix,
Arizona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Orally promulgating and maintaining an overly-broad and
discriminatory rule that prohibits employees who are working
from telling striking employees where crews of the Respon-
dent’s employees are working.

17 Counsel for the Union, in a document entitled “Notice of Appear-
ance” dated August 13, 2008, and received by me over a week after the
hearing concluded, includes a “request for extraordinary remedies.” A
certificate of service attached to the document shows service upon both
counsel for the General Counsel as well as counsel for the Respondent.
However, in the document, counsel for the Union fails to give any
reasons why any of the extraordinary remedies requested should be
ordered in this case. Counsel for the Union did not file a separate
posthearing brief, but, rather, joins in the brief filed by counsel for the
General Counsel, which brief does not request any extraordinary reme-
dies. As I am unaware of any reason why extraordinary remedies
should be ordered in this case, I hereby deny the Union’s request. I will
order notice posting in both English and Spanish, but such a require-
ment, appropriate under the circumstances of a large number of Spanish
speaking employees, is hardly extraordinary. For the purpose of pro-
viding a complete record of these proceedings, I will receive counsel
for the Union’s “Notice of Appearance” into evidence as CP Exh. 1.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
POST TENSION OF NEVADA, INC. 837
(b) Orally promulgating and maintaining an overly-broad
and discriminatory rule that prohibits employees from speaking
to agents of the Union.
(c) Creating an impression among its employees that their
union activities or other protected concerted activities are under
surveillance by the Respondent.
(d) 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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Phoenix, Arizona, copies of the attached notice marked
“Appendix”19 in both English and Spanish. Copies of the no-

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tice, on forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 March 10, 2008.
(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 inso-
far as it alleges violations of the Act not specifically found.