RC Aluminum Industries

National Labor Relations Board - Board Decisions

Dec 8, 2004

343 N.L.R.B. 939 (N.L.R.B. 2004)

RC ALUMINUM INDUSTRIES
343 NLRB No. 103
939
RC Aluminum Industries, Inc., and RC Erectors, Inc.
and Local Union No. 272 and Shopmen’s Local
Union No. 698 of the International Association
of Bridge, Structural, Ornamental, and Rein-
forcing Iron Workers, AFL–CIO. Cases 12–
CA–21207 and 12–CA–21453
December 8, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On May 14, 2002, Administrative Law Judge George
Carson II issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs. The Respondent filed an answering brief,
and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings,1 and conclusions2 as

1 The Respondent has excepted to certain credibility findings made
by the administrative law judge. Judge Jerry M. Hermele died after the
hearing in the instant case had closed, but before the issuance of a
decision. Thereafter, the case was reassigned to Judge Carson. The
parties agreed to waive a hearing de novo and Judge Carson issued a
decision based on the record before Judge Hermele. It is the Board’s
established policy to attach great weight to a judge’s credibility find-
ings insofar as they are based on demeanor. However, the Act commits
to the Board itself the power and responsibility of determining the facts
as revealed by a preponderance of the evidence, and the Board is not
bound by the judge’s findings of facts, but bases its findings on a de
novo review of the entire record. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). Judge Carson’s
credibility findings are necessarily based on factors other than de-
meanor, and, in consonance with the Board’s policy set forth in Stan-
dard Dry Wall Products, supra, we have independently examined the
record in this case. We find that there is no basis on the record in this
proceeding for reversing his credibility determinations or his findings
of fact based thereon.
2 In adopting the judge’s dismissal of the allegation that union sup-
porter Roberto Espino was unlawfully denied access to his work area,
we disavow the judge’s suggestion that the party with the burden of
persuasion on an issue necessarily fails to meet its burden when there is
conflicting witness testimony that demeanor evidence fails to resolve.
The Board has found that such one-on-one credibility contests may be
resolved with reference to “the weight of the respective evidence, es-
tablished or admitted facts, inherent probabilities, and reasonable infer-
ences which may be drawn from the record as a whole.” Daikichi
Sushi, 335 NLRB 622, 623 (2001) (internal quotation marks and cita-
tion omitted). Here, however, the General Counsel has failed to argue
that any of these factors support the credibility of Espino’s testimony,
and so the General Counsel has not met his burden on the denial of
access issue.
In adopting the judge’s dismissal of the allegation that Espino was
unlawfully discharged, we note that no party has excepted to the
judge’s conclusion that the General Counsel met his burden of showing
unlawful motive. In any case, we agree with the judge that the Re-
modified below and to adopt the recommended Order as
modified.
We adopt the judge’s conclusions that the Respondent
violated the Act on several occasions following a Board
election held July 21, 2000.3 Specifically, as explained
below, we agree with the judge that the Respondent dis-
charged union supporter Alba Huembes in violation of
Section 8(a)(3). We further agree with the judge that the
Respondent unlawfully transferred union supporter Pedro
Nunez to more onerous work, but we clarify the judge’s
make-whole remedy. In addition, we find that the Re-
spondent threatened Nunez with unspecified reprisals on
December 13 in violation of Section 8(a)(1).4
I. HUEMBES’ ALLEGATIONS
The judge found that Supervisor of Production Ar-
mando Rodriguez unlawfully terminated active union
supporter Alba Huembes on November 16. He rejected
the Respondent’s claim that Huembes was not fired, but
quit, relying in part on a photocopy from Huembes’ per-
sonnel file of one of her paychecks bearing the notation
“Termination 11/16/00.”5 In exceptions, the Respondent
again asserts that Huembes quit and argues that the pay-
check document is inadmissible because it is hearsay and
does not fall within the business records exception to the
hearsay rule. See Fed.R.Evid. 803(6).6 We find no merit
in this exception.

spondent showed that it would have discharged Espino even absent his
union activity.
3 The Union won the election. On November 9, 2000, the Regional
Director certified the Union, but the Respondent subsequently refused
to recognize and bargain with the Union. The Union filed charges and,
in RC Aluminum Industries, 334 NLRB No. 64 (2001) (not reported in
Board volumes), enfd. 326 F.3d 235 (D.C. Cir. 2003), the Board held
that the Respondent had violated Sec. 8(a)(5) of the Act.
All dates refer to 2000.
4 We adopt the judge’s dismissal of multiple allegations of the com-
plaint, for the reasons stated by him. No exceptions were filed to the
judge’s dismissal of the General Counsel’s posthearing allegation that
the Respondent’s postelection grant of a wage increase violated Sec.
8(a)(3).
5 The judge also discredited Rodriguez’ testimony that Huembes
quit. He further discredited the testimony of Leadman Jose Diaz, who
was present for at least part of the conversation, that Huembes said she
was leaving. The Respondent attacks the judge’s credibility determina-
tions. It argues that the judge erred because Diaz’ testimony that Rod-
riguez did not fire Huembes “in [his] presence,” and that Huembes
stated that she was leaving, corroborates Rodriguez’ testimony. We
disagree. Because it is not clear whether Diaz was present for the entire
discussion, his testimony that Rodriguez did not fire Huembes “in his
presence” does not establish that Rodriguez did not fire Huembes. And
even if Huembes did say that she was leaving, that would not necessar-
ily establish that she quit.
6 Rule 803 states: “The following are not excluded by the hearsay
rule, even though the declarant is available as a witness: . . . (6) Re-
cords of regularly conducted activity.—A memorandum, report, record,
or data compilation, in any form, of acts, events, conditions, opinions,
or diagnoses, made at or near the time by, or from information transmit-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD940
We need not decide whether the document concededly
from Huembes’ personnel file falls within the exception
to the hearsay rule, because we agree with the judge’s
conclusion that the document was admissible. See
Meyers Transport of New York, 338 NLRB 958, 969
(2003) (hearsay is admissible if “rationally probative in
force and if corroborated by something more than the
slightest amount of other evidence” (citing cases)). We
find that the “Termination” notation on the disputed
document is corroborated by Huembes’ testimony, which
we credit for reasons explained below, and is, thus, ad-
missible.7
We disagree with the dissent’s assertion that, in the
circumstances here, the use of the word “termination”
does not tend to prove that Huembes was discharged,
because it could reasonably be interpreted as referring to
a voluntary separation from employment. Had Huembes
quit, the word “quit” or some other term indicating vol-
untariness would likely have been written on the check,
in order to make clear that Huembes was not discharged
and, thus, that the Respondent was not exposed to poten-
tial liability (e.g., for unemployment compensation) in
connection with her separation.
According to Huembes, Rodriguez stated during their
November 16 conversation:
[T]his is going to finish here already . . . because I al-
ready have your two checks being made. Because you
are right here, you are uprising the people with the Un-
ion, [a]nd you know that with a Union or without a Un-
ion, I can fire people. . . [J]ust like I am firing you, I
could fire anybody, because I don’t believe in the Un-
ion.
Although the judge did not expressly credit Huembes, we
find her testimony credible based on the inherent probabili-
ties that support the judge’s conclusion that Huembes was
terminated. Daikichi Sushi, 335 NLRB at 623. Thus, the

ted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other
qualified witness . . . unless the source of information or method or
circumstances or preparation indicate lack of trustworthiness. The term
‘business’ as used in this paragraph includes business, institution, asso-
ciation, profession, occupation, and calling of every kind, whether or
not conducted for profit.”
7 The Respondent also argues that the document is inadmissible be-
cause it has not been properly authenticated under Fed.R.Evid. 901.
We disagree. The General Counsel introduced the document into evi-
dence as a document from Huembes’ personnel file. Counsel for the
Respondent conceded that the document was in fact from its personnel
files. Thus, we find that the document was identified as being what its
proponent claimed it to be, consistent with the requirements of Rule
901.
Respondent did not explain why Huembes ostensibly quit,
and the circumstances do not suggest a reason. On the con-
trary, there is no evidence that she was dissatisfied with her
work, and she had in fact recently asked the Respondent for
a large loan.8 Further, Rodriguez did not deny having made
the statements Huembes attributed to him.9 We, therefore,
credit Huembes’ testimony and find that Rodriguez’ state-
ment—“[j]ust like I am firing you, I could fire anybody”—
corroborates the “Termination” notation on the disputed
document.10
We conclude, like the judge, that the General Counsel
has shown that Huembes was discharged and, thus, that
the Respondent took adverse action against her.11 More-
over, we agree with the judge that the General Counsel
had met his initial burden of showing unlawful motive.
Thus, according to Huembes’ unrebutted testimony, Rod-
riguez stated that he was firing Huembes and could fire
whomever he pleased because he did not believe in the
Union. In addition, Rodriguez terminated Huembes im-
mediately after learning that she had insulted another
employee during a heated discussion of the Union.12 He
had also previously warned Huembes, unlawfully,

8 Contrary to the dissent, we decline to speculate that Huembes quit
voluntarily because she was “exasperated” by Rodriguez’ treatment of
her. There is, first, no evidence that Huembes was “exasperated,” and,
second, it is highly implausible, given her apparent need for income,
that she would have quit.
9 Rodriguez was not asked about the remarks attributed to him by
Huembes and so did not specifically deny them. However, Rodriguez’
testimony about his conversation with Huembes did not include the
remarks.
10 The General Counsel excepts to the judge’s failure to find, based
on Huembes’ testimony, that Rodriguez unlawfully threatened employ-
ees with discharge. We agree. Rodriguez stated in the course of dis-
charging Huembes that he would discharge whomever he pleased be-
cause he didn’t believe in the Union. Rodriguez’ statements would
reasonably tend to interfere with Huembes’ Sec. 7 rights. Moreover, if
Diaz was present at the time, the statements would also reasonably have
deterred him from Sec. 7 activity.
In this regard, Member Meisburg finds, for institutional reasons, that
the Respondent violated Sec. 8(a)(1) by implying that union support
was the reason for Huembes’ discharge. Although he would find that
the statement under scrutiny was part of the res gestae of the unlawful
layoff and is subsumed by that violation, he recognizes that there is
support for the finding of a violation. See Benesight, Inc., 337 NLRB
282, 283–284 (2001).
Member Liebman adheres to precedent and finds that Rodriguez’
statements clearly constitute a separate threat of unlawful discharge.
Id.; see also TKC, a Joint Venture, 340 NLRB 923 fn. 2 (2003).
11 A finding of adverse action is an element of the initial showing re-
quired under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889
(1st Cir. 1981), cert. denied 445 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–403 (1983).
12 On November 16, the day of the discharge, Leadman Miguel Gar-
zon reported to Rodriguez that Huembes had called him a “maricon”
(translated from Spanish into English as “faggot”) during a conversa-
tion about the Union. Rodriguez spoke with Huembes about the inci-
dent before terminating her.
RC ALUMINUM INDUSTRIES 941
against mentioning the Union.13 Because the Respondent
has offered no lawful explanation for the discharge, it has
failed to rebut the General Counsel’s showing of unlaw-
ful motivation.
II. NUNEZ’ ALLEGATIONS
Like the judge, we find that Pedro Nunez was unlaw-
fully transferred to more onerous duties after he wore his
union pullover to work. The judge ordered a make
whole remedy, which we clarify below.14 The judge did
not specifically address the allegation that Nunez was
threatened with unspecified reprisals. We find that viola-
tion.
Nunez was one of the Respondent’s most senior and
capable drivers at its 2805 NW 75th Street facility, under
the direction of Operations Manager Angel Portal. He
was also the appointed union steward. On December 12,
Portal directed Nunez to report the next day to the Re-
spondent’s Hialeah facility, which needed additional help
for a couple of weeks. After Nunez arrived at Hialeah,
Rodriguez told him that if he wanted to remain there,
Rodriguez could teach him window assembly, but “he
[Rodriguez] didn’t want to know anything about the Un-
ion.”15 A day later, Nunez wore a union pullover to
work. Rodriguez called Portal and stated that he no
longer wanted Nunez working at Hialeah because “this
gentleman had a union pullover on and . . . he [Rodri-
guez] didn’t want to create any problems.” Portal told
Rodriguez to have Nunez report back to Portal.
Portal admitted that he asked Nunez, when Nunez re-
ported back to him, why Nunez was wearing a union
pullover. Portal then stated, according to the judge’s

13 Specifically, the judge found that Rodriguez unlawfully told
Huembes on the first day of her transfer to Hialeah that he was placing
her away from the other employees because he did not want to hear her
mentioning the Union. We agree with the judge, for the reasons stated
by him, that this prohibition was unlawful.
14 The judge dismissed as unsupported the allegation that Nunez was
unlawfully denied overtime by virtue of his unlawful transfer. We
affirm the judge’s dismissal for the reasons he stated. We further find,
in agreement with the judge, that this dismissal does not preclude a
finding in compliance that Nunez is entitled to make-whole relief for
any loss of hours as a result of his unlawful transfer from Hialeah to a
more onerous work assignment.
15 We agree with the judge’s dismissal of the complaint allegation
that, in making this statement, Rodriguez unlawfully threatened to deny
employment opportunities to employees if they supported or assisted
the Union.
Contrary to her colleagues, Member Liebman would find that Rodri-
guez’ statements did constitute an unlawful threat to deny Nunez an
employment opportunity. Rodriguez’ offer to teach Nunez a new skill
was contingent upon Nunez’ ceasing any activity that might demon-
strate to Rodriguez his support for the Union. Indeed, the following
day, Rodriguez made good on his threat to deny work opportunities in
response to manifestations of union support by cutting short Nunez’
temporary assignment to Hialeah because Nunez came to work in a
union pullover.
findings, that he had a “little job” for Nunez and took
Nunez over to the Respondent’s 2600 NW 75th Street
facility to break down glass boxes, a task requiring a
crowbar. The judge found that the task was onerous and
was generally performed by shipping employees and
janitors, not drivers.16
The judge ordered an appropriate make-whole remedy
for the unlawful transfer, including overtime pay. In his
discussion, the judge suggested that the appropriate com-
parison for make-whole purposes would be the amount
of overtime Nunez would have received “if he had con-
tinued to drive from his normal work location.” But the
judge concluded that Nunez’ initial transfer from his
normal location to Hialeah was not itself unlawful.17
Thus, the appropriate comparison here would be the
overtime Nunez would have earned at Hialeah, where he
presumably would have remained over the relevant time
period if he had not been sent back for wearing his union
pullover, rather than in his normal location at the 2805
NW 75th Street facility. We accordingly clarify the
make-whole remedy.
The judge did not address the complaint allegation that
Portal threatened Nunez with unspecified reprisals on
December 13. Nunez testified that, after Portal asked
him why he was wearing his union pullover, Portal asked
whether Nunez wanted to “continue the war.” We credit
Nunez’ uncontroverted testimony.18 We find that Por-
tal’s statement referring to “continu[ing] the war,” made
after Nunez was banished from Hialeah for wearing his
union pullover and just before Portal unlawfully reas-
signed him to more onerous work, conveyed a threat of
unspecified reprisals and violated Section 8(a)(1). Parts
Depot, Inc., 332 NLRB 670, 673–674 (2000) (question to
openly prounion employee about his union support posed
in tone that conveyed a threat of unspecified reprisal vio-
lated Sec. 8(a)(1)).
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 1.

16 Although it is not clear whether this reassignment lasted 1-1/2
days, as Portal testified, or 3 days, per Nunez, we find that difference
immaterial. As the judge indicated, Portal’s asserted reason for the
assignment—that all the trucks were out on deliveries by the time Nu-
nez returned—does not explain why the assignment was extended
beyond the end of that day. In any case, the reassignment to more
onerous work would not have occurred at all had Nunez not been re-
moved from Hialeah for wearing his union pullover.
17 This issue was not raised in the complaint, but in the General
Counsel’s posthearing brief. No party has excepted to the judge’s
rejection of the General Counsel’s argument that the initial transfer to
Hialeah was unlawful. Thus, that issue is not before us.
18 The judge did not discredit Nunez’ testimony. Portal was not spe-
cifically asked at the hearing whether he made the statement attributed
to him by Nunez and so did not specifically deny it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD942
“1. By prohibiting prounion employees from speaking
with their coworkers, by prohibiting employees from
discussing the Union, by threatening prounion employees
with unspecified reprisals, and by engaging in surveil-
lance of employees’ union activities, the Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, RC
Aluminum Industries, Inc., and RC Erectors, Inc., Mi-
ami, Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(c), and reletter
the subsequent paragraphs accordingly.
“(c) Threatening employees with unspecified reprisals
because of their union activities.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
CHAIRMAN BATTISTA, concurring in part and dissenting in
part.
I concur with my colleagues on their findings of unfair
labor practices, except as to the finding of an unlawful
discharge of Alba Huembes. Contrary to my colleagues,
I find that the General Counsel has failed to prove that
Huembes was discharged.
1. The facts surrounding the cessation of Huembes’
employment with the Respondent are in dispute.1 Ac-
cording to Huembes, her supervisor (Rodriguez) called
her into his office. Huembes testified that Rodriguez told
her he was firing her because she “was uprising [sic] the
people with the Union,” and he could fire anybody “be-
cause I don’t believe in the Union.”
According to Rodriguez, Huembes approached him in
his office during the lunch period and complained that
another employee was bothering her (Huembes).2 After
Rodriguez stated to Huembes three times, “Alba, I don’t
know what I’m going to do with you anymore,” Huem-
bes announced that she was quitting.
Another employee, Jose Diaz, was present during the
conversation between Huembes and Rodriguez. Diaz
testified that Rodriguez told Huembes, “I don’t know
what I am going to do with you.” After Rodriguez made

1 The presiding administrative law judge died after the hearing
closed but before a decision issued, and the parties elected not to retry
the case in front of the new judge. Accordingly, the credibility determi-
nations of the judge are not based on demeanor.
2 Another employee, Miguel Garzon, had previously complained to
Rodriguez that Huembes had been bothering him.
that statement three times, Huembes said she was “leav-
ing.” When asked whether Rodriguez fired Huembes,
Diaz testified, “[N]ot in my presence.”
Lastly, the judge admitted into the record a copy of
one of Huembes’ final two paychecks, issued to her on
her last day of work, upon which was written “Termina-
tion 11/16/00.” Rodriguez testified that he did not know
where the written notation came from. The Respondent
objected that the check and notation had not been prop-
erly authenticated and that they constituted hearsay evi-
dence. However, the judge admitted the check and nota-
tion into evidence.
Based on the evidence, I find that the General Counsel
has failed to prove that Huembes was discharged. Al-
though Huembes testified to that effect, Rodriguez, cor-
roborated by Diaz, testified that Huembes quit. There is
no demeanor-based credibility finding that resolves the
conflict in favor of Huembes. Nor are there any other
rational bases for crediting the one witness over the two
others.3 Thus, the General Counsel has failed to prove,
by a preponderance of the evidence, that Huembes was
discharged. American, Inc., 342 NLRB 768, 768 (2004)
(affirming dismissal of allegation because “the credibility
of the General Counsel’s witness did not preponderate
over that of the Respondent’s”) (citing Iron Mountain
Forge Corp., 278 NLRB 255, 263 (1986).
My colleagues credit the testimony of Huembes be-
cause Rodriguez did not expressly deny her testimony
and because the Respondent did not explain why Huem-
bes would have quit. I disagree. First, Rodriguez implic-
itly denied Huembes’ testimony when testifying to an
entirely different version of their conversation. It is liter-
ally a “he said/she said” situation. There is no reason to
discredit Rodriguez simply because, after testifying to a
completely different series of statements, he did not also
say that other statements contradicting his testimony
were not said. Second, there is no basis for requiring the
Respondent to expressly demonstrate why Huembes quit.
Rodriguez testified that many employees quit work, and,
thus, Huembes’ quitting would not be unusual. In addi-
tion, Huembes’ quitting is explained by the record evi-
dence that Huembes had been bothered by another em-
ployee, and she was then accused of bothering others.
Rodriguez said three times: “Alba, I don’t know what
I’m going to do with you anymore.” In light of this, it is
not surprising that an exasperated Huembes would quit.
In sum, there is nothing in Huembes’ testimony to
suggest that it is inherently more probable than the testi-
mony of Rodriguez and Diaz. On the other side, Rodri-

3 Indeed, since Huembes was an interested witness, this is at least
one rational factor against his credibility.
RC ALUMINUM INDUSTRIES 943
guez’ testimony was corroborated by Diaz, who con-
firmed that Rodriguez thrice told Huembes, “I don’t
know what I am going to do with you” after which
Huembes quit.
The majority states that Diaz’ statement, “not in my
presence,” suggests that he may not have been present
for the entire conversation. This is complete speculation.
According to Huembes, her employment ended in Rodri-
guez’ office after she and Rodriguez spoke. Diaz and
Rodriguez both testified to being at that meeting and that
Huembes stated she was quitting. There is no reason to
discredit Diaz’ testimony.
I also find the check is insufficient to support a finding
of a discharge. This document is inadmissible and it was
error for the judge to admit it into evidence. Rodriguez
could not authenticate the check or the writing on the
check, and the General Counsel called no other witnesses
to authenticate the check and writing. The General Coun-
sel bears the burden of authenticating the evidence on
which it relies, and failed to do so here. Thus, lacking
authenticity, the checks and writing were improperly
admitted. Fed.R.Evid. 803; Marathon LeTourneau Co.,
256 NLRB 350, 350 fn. 3 (1981), enfd. 699 F.2d 248
(5th Cir. 1983); Longshoremen ILWU Local 19 (West
Coast Container Services), 266 NLRB 193, 199 fn. 4
(1983).
My colleagues say that, under Board law, hearsay evi-
dence is admissible if it is corroborated. They then go on
to use Huembes testimony as the corroboration. That
argument will not suffice. As discussed above, that tes-
timony has not been shown to be credible. And, to say
that the check and notation support credibility (so as to
corroborate the check and notation) is an egregious ex-
ample of circular reasoning.
Further, even assuming, arguendo, that the check and
notation were properly admitted, it would nonetheless
fail to demonstrate that Huembes was discharged. Nei-
ther party disputes that Huembes’ employment ended on
November 16, as the checks state. What is in dispute is
whether that termination was voluntary or not. The pres-
ence of the handwritten word “termination” does little to
answer this question. In sum, the check fails to establish
that Huembes was involuntarily terminated.4
In sum, the General Counsel bears the burden of prov-
ing that Huembes was discharged, and the testimony of
Huembes and the unauthenticated checks are insufficient

4 My colleagues suggest that the word “quit” would have more
clearly indicated a voluntary separation from employment. However,
even if the word “quit” clearly means voluntary separation, it does not
follow that “termination” clearly conveys the contrary. The term is
ambiguous in regard to the issue of voluntary versus involuntary sepa-
ration.
to prove the case. Accordingly, I would not find that the
Respondent discharged Huembes. American, Inc., supra
at 768.5
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 prohibit those of you who support the
Union from speaking with your coworkers, and WE WILL
NOT prohibit you from speaking about the Union.
WE WILL NOT engage in surveillance of your union ac-
tivities.
WE WILL NOT threaten employees with unspecified re-
prisals for engaging in union activities.
WE WILL NOT discharge, assign more onerous work to,
transfer, or otherwise discriminate against any of you for
supporting Local Union No. 272 and Shopmen’s Local
Union No. 698 of the International Association of
Bridge, Structural, Ornamental, and Reinforcing Iron
Workers, AFL–CIO, or any other union.
WE WILL NOT fail and refuse to notify and bargain with
Local Union No. 272 and Shopman’s Local Union No.
698 of the International Association of Bridge, Struc-
tural, Ornamental, and Reinforcing Iron Workers, AFL–
CIO, before making changes in your terms and condi-
tions of employment.

5 Although I do not credit the testimony of Huembes, were I to do so
and find the “discharge” violation, I would agree with Member Meis-
burg that Rodriguez’ statement to Huembes was part of the res gestae
of the discharge, and was not a separate violation of the Act. I also
agree with Member Meisburg to affirm the judge’s dismissal of the
allegation that Rodriguez unlawfully threatened to deny employment
opportunities to employees if they supported or assisted the Union.
Finally, I agree with my colleagues that Angel Portal’s “continue the
war” statement violated the Act. In crediting Nunez testimony in this
regard, I note that the statement is consistent with other unlawful con-
duct directed at Nunez.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD944
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Alba Huembes full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges enjoyed.
WE WILL make Alba Huembes whole for any loss of
earnings and other benefits she suffered as a result of our
discrimination against her, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Alba Huembes, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that we will not use the discharge against her in
any way.
WE WILL make Pedro Nunez whole, with interest, for
any loss of earnings that he may have suffered as a result
of our discrimination against him.
WE WILL notify and bargain with the Union before
making changes in your terms or conditions of employ-
ment. The appropriate bargaining unit is:
All full-time and regular part-time production and
maintenance employees and truck drivers employed by
us at our facilities in Miami-Dade County, Florida, in-
cluding the shipping clerk and the receiving clerk; but
excluding purchasing clerks, estimators, draftsmen,
secretaries, receptionists, accounting employees, per-
sonnel clerks, and all other office clerical employees,
guards and supervisors as defined in the Act.
RC ALUMINUM INDUSTRIES, INC., AND RC
ERECTORS, INC.
Shelly B. Plass, Esq., for the General Counsel.
Harry N. Turk, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Miami, Florida, on November 26, 27, and 28, 2001,
before the late Administrative Law Judge Jerry M. Hermele.1
The charge in Case 12–CA–21207 was filed on November 29,
and was thereafter amended several times, the final and fifth
amended charge was filed on June 28, 2001. The charge in
Case 12–CA–21453 was filed on April 13, 2001. A consoli-
dated complaint issued on July 31, 2001. The complaint, as
amended at the hearing, alleges various violations of Section
8(a)(1) of the National Labor Relations Act (the Act), several
violations of Section 8(a)(3) of the Act including the discharges

1 All dates are in the year 2000, unless otherwise indicated.
of employees Alba Huembes and Roberto Espino and the as-
signment of more onerous work to employee Pedro Nunez, and
a reduction in the work hours of unit employees and a grant of a
wage increase to unit employees in violation of Section 8(a)(3)
and (5) of the Act. Judge Hermele had not issued a decision in
this case prior to his untimely death. On March 4, 2002, Chief
Administrative Law Judge Robert A. Giannasi reassigned this
case to me pursuant to Section 102.36 of the Board’s Rules and
Regulations. The parties have agreed not to try the case de
novo. I find merit with regard to several of the 8(a)(1) allega-
tions, the 8(a)(3) allegations relating to Huembes and Nunez,
and the 8(a)(5) allegation relating to the wage increase.
On the entire record made before Judge Hermele,2 and after
considering the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, RC Aluminum Industries, Inc., and RC
Erectors, Inc., the Company, are Florida corporations, engaged
in the manufacture of windows, handrails, and doors at produc-
tion facilities located in Dade County, Florida, and the installa-
tion of those products at various jobsites in the State of Florida.
Although the Respondent’s answer denies that RC Aluminum
Industries, Inc., and RC Erectors, Inc., are affiliated businesses
and constitute a single-integrated business enterprise, it admits
that they annually purchase and receive goods valued in excess
of $50,000 directly from points outside the State of Florida. In
RC Aluminum Industries, 334 NLRB No. 64 (2001) (not re-
ported in Board volumes), a test of certification case, the Board
held that RC Aluminum Industries, Inc., and RC Erectors, Inc.,
constitute a single-integrated business enterprise and a single
employer and that both individually and as a single employer
are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Consistent with the
Board’s decision, I so find and conclude.
The Respondent admits, and I find and conclude, that Local
Union No. 272 and Shopmen’s Local Union No. 698 of the
International Association of Bridge, Structural, Ornamental,
and Reinforcing Iron Workers, AFL–CIO (the Union), is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company, in the year 2000, operated out of five facili-
ties. Testimony at the hearing related to three of these facilities:
the headquarters building located at 2805 N.W. 75th Street in
Miami, a production facility located diagonally across the street
at 2600 N.W. 75th Street, and a production facility in Hialeah,
Florida. The headquarters building contained managers’ of-
fices, work areas for nonunit personnel including draftsmen,
estimators, and sales employees, a production area where ap-
proximately 40 unit employees worked, and the shipping and

2 I grant the joint motion of the parties filed on December 13, 2001,
to reopen the record and, in the absence of any objection, I receive GC
Exh. 20 and close the record.
RC ALUMINUM INDUSTRIES 945
receiving department. The facility located at 2600 N.W. 75th
Street provided production space in which approximately 40
unit employees assembled windows, chiefly for the Diplomat
Hotel, the Company’s major contract during the relevant pe-
riod. The production facility in Hialeah is about 10 miles from
the buildings on N.W. 75th Street.
The Company’s operations are directed by President Raul
Casares and Vice President Angel Mestres. At all relevant
times, Angel Portal was the operations manager with day-to-
day responsibility for production at the N.W. 75th Street facili-
ties and shipping and receiving. Armando Rodriguez, supervi-
sor of production, was responsible for the Hialeah facility. Por-
tal and Rodriguez each reported directly to Vice President
Mestres.
On July 21, a representation election was held in two sepa-
rate units of the Company’s employees, a unit of production
and maintenance employees and a unit of installers. The em-
ployees in both units selected the Union as their collective-
bargaining representative. On November 9, the Regional Direc-
tor of Region 12 certified the Union in the two separate units.
Following the certification, the Respondent refused to recog-
nize and bargain with the Union. The Union filed charges and,
in RC Aluminum Industries, 334 NLRB No. 64, slip op. 2
(2001) (not reported in Board volumes), decided on July 17,
2001, the Board held that the Respondent had violated Section
8(a)(5) of the Act. That case is presently pending before the
Court of Appeals for the District of Columbia.
This case involves only the production and maintenance unit
and, for the most part, relates to events occurring following the
Union’s election victory on July 21. The 8(a)(1) allegations in
the complaint arise from statements allegedly made by Mestres,
Portal, and Rodriguez at various times to alleged discriminatees
Alba Huembes, Roberto Espino, and Pedro Nunez, and I shall,
therefore, address those allegations in the context of my sepa-
rate discussions of the Company’s alleged discrimination
against each of those employees. This decision shall then ad-
dress the complaint allegations relating to a reduction of work
hours and a general wage increase, both of which are alleged as
8(a)(3) and (5) violations.
B. Alba Huembes
1. Facts
Huembes worked for the Company from August 11, 1993,
until November 16. In July, she was working at the production
facility at 2600 N.W. 75th Street where she glued parts in as-
sembly. Huembes participated in a union rally that was held
outside the plant and in view of the headquarters building at
2805 N.W. 75th Street prior to the representation election. She
wore a prounion T-shirt, and she was photographed by a secu-
rity guard.
The Company has a past practice of granting no-interest
loans to employees that are repaid by weekly deductions from
their wages. Huembes had received loans for $300 to $400 on
four or five occasions. Operations Manager Angel Portal testi-
fied without contradiction that he could not approve loans in
excess of $500 and that loans to employees were generally
between $200 and $300, but supervisors could receive $500.
On July 14, a week before the election, Huembes requested a
loan in order to cover the cost of some dental work that she
needed. Huembes says that she requested a $1000 loan; Portal
says that she asked for $2000. Portal testified that, despite the
$500 limitation, Huembes requested that he present her request
to President Casares. As he expected, Casares denied the re-
quest. Portal testified that, when he informed Huembes of the
denial, she responded by calling Casares an “asshole.” Huem-
bes testified that Portal informed her that she would receive the
loan if she and her son, who was also an employee, would
agree to be absent from work on Friday, July 21, the day of the
election, and that she refused.
Portal speaks both English and Spanish and testified without
an interpreter. Huembes speaks only Spanish and testified
through an interpreter. When Huembes testified in rebuttal, she
was asked whether she had called Casares an “asshole.” The
interpreter stated that the question could not be translated be-
cause there is no such word in Spanish. No evidence was pre-
sented to the contrary. Portal and Huembes agree that she re-
quested a loan but that she did not receive the loan. The failure
to grant the loan is not alleged as a violation of the Act. Huem-
bes had previously received loans, all for less than $500. Al-
though she admitted asking for $1000, I find it unlikely that
Huembes would ask for a loan of $2000, an amount more than
four times greater than she had previously received. In the ab-
sence of evidence contradicting the court interpreter’s inability
to translate the word “asshole,” I do not credit Portal’s attribu-
tion of that word to Huembes. Having discredited his testimony
regarding the reply that Huembes made, I credit her testimony
that she replied by declining Portal’s offer of the loan since it
was conditioned upon her agreeing to remain at home with her
son on the day of the election.
During the week following the election, Huembes spoke with
Vice President Mestres. Both agree that the conversation oc-
curred in his office. According to Huembes, Mestres told her to
come to his office where he asked her why she wanted to be
involved with the Union. She testified that she replied that she
wanted an increase in her salary, that she had asked Operations
Manager Portal for a raise, and that Portal had replied that, if
she did not like the salary she was earning, she could leave.
Mestres asked why she had not come to him but then immedi-
ately stated that he could not give her a raise at that time, to
wait to see “how the problem with the Union gets resolved; if
not, ask the Union to give you a raise.”
Mestres testified that Huembes approached him, asking for a
raise. He recalls that he informed her that he could do nothing
saying, “I cannot give you a raise, I cannot dismiss you, I can-
not do anything . . . until we know the results of the election”
and that then the Union would raise her salary through negotia-
tions or “we’ll raise your salary,” referring to the Company.
Given the fact that the election was over, Mestres would have
no reason to seek out the reasons Huembes had supported the
Union. Huembes had, some 10 days earlier, sought the loan
from Portal. I credit Mestres that Huembes approached him and
asked for a raise.
On the afternoon of Friday, July 21, the day of the election,
Huembes and all other employees in the facility at 2600 N.W.
75th Street were told not to report on Saturday, that there would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD946
be no more overtime. Huembes returned to work on Monday.
She acknowledged that her work was “starting to decrease.”
On September 5, Huembes was transferred to the Hialeah fa-
cility. She began work there on September 6. She acknowl-
edges that, within a week or two of her transfer, several other
employees were also transferred to that facility. Upon reporting
to work, Huembes was directed to a worktable at the rear of the
production floor, away from her coworkers. About an hour after
she reported to work, Supervisor of Production Armando Rod-
riguez came to her work station and informed her that the loca-
tion at which she had been placed “was going to be my work-
place, that he didn’t want to see me talking with . . . anybody
around me, and that is why they had placed me there.” He told
her that he “didn’t want the Union being mentioned.” Rodri-
guez did not deny his placement of Huembes or the foregoing
conversation.
Huembes continued working at the Hialeah facility from
September 6 until November 16. During this period she testi-
fied that she was denied overtime whereas other employees
received overtime. She named none of those employees. She
rode to work with a fellow employee, Gabriel Mendez. When
questioned whether she also rode home with Mendez, Huembes
initially testified, “Yes, he would give me a ride.” She then
modified this answer, testifying that she would ride with him
but that, in the afternoons, “sometimes I would not go with
him.” She did not testify that her not riding with Mendez in the
afternoon occurred because he was working overtime whereas
she was not.
On November 16, when he picked up Huembes, Mendez
commented that Leadman Miguel Garzon had told him not to
pick her up because doing so “was going to jeopardize” him,
Mendez. On prior occasions, Mendez had informed Huembes
that Garzon had said that because Huembes “belonged to the
Union . . . [that she] was going to jeopardize him [Mendez] that
way.” Upon arriving at work, Huembes confronted Garzon,
asking him what he had against her since she had done nothing
to him and why he had told Mendez not to give her a ride, since
Mendez’ “vehicle is his vehicle and that vehicle doesn’t belong
to the company.” Garzon responded that he was not the one
saying it, that “it is Armando Rodriguez who does not want to
see Gabriel [Mendez] giving you a ride, because he says that
. . . [you are] from the Union.”
Garzon acknowledges that he spoke to Mendez, cautioning
him about having conversations with Huembes that interrupted
his work. Garzon initially testified that, on the morning of No-
vember 16, Huembes walked up to him and called him a “mari-
con,” which is translated into English as “faggot.” Garzon testi-
fied that he reported Huembes’ offensive conduct to Rodriguez.
Upon further examination, Garzon testified that Huembes had
confronted him, and told him that he was “stupid, because she
wanted me to go on the side of the Union, and I told her that I
didn’t want to.” Garzon states that Huembes persisted, telling
him that the employees would have better benefits. He re-
sponded that he was “fine the way I was.” Garzon placed the
“maricon” comment at the beginning of this conversation. Re-
garding what he reported to Rodriguez, Garzon was asked,
“When you went to Mr. Rodriguez, did you tell him what she
was trying to convince you to do when she called you a mari-
con?” Garzon answered, “Correct.”
Whether Garzon reported that Huembes was soliciting him
to support the Union or that he had told Huembes that Rodri-
guez was seeking to interfere with her transportation to work
because she was “from the Union” is of no significance.
Whichever report Garzon made, it was directly related to
Huembes’ union activity.
At 12:20 p.m., Rodriguez called Huembes to his office.
Leadman Jose Diaz was present, performing some work, but he
said nothing. Rodriguez informed Huembes that “this is going
to finish here already . . . because I already have your two
checks being made. Because you are right here, you are upris-
ing the people with the Union, [a]nd you know that with a Un-
ion or without the Union, I can fire people. And the Union, I
just stick it up my ass. . . . [J]ust like I am firing you, I could
fire anybody, because I don’t believe in the Union.” Rodriguez
mentioned that Huembes had been handing out “papers,” and
she acknowledged that she had done so at lunch and on breaks.
Rodriguez directed Huembes to punch her timecard and leave.
She refused, stating that he was firing her so he could punch her
timecard.
Rodriguez testified that he did not fire Huembes, that she ap-
proached him when he went to the shipping office during the
lunch period and complained that Garzon was bothering her.
He responded by saying, three times, “Alba, I don’t know what
I’m going to do with you anymore.” After his third repetition,
he testified that Huembes stated that she was quitting.
Diaz, in somewhat confusing testimony, testified that Huem-
bes initiated the conversation by stating her version of a con-
versation with Garzon. When asked what Huembes had pur-
portedly told Rodriguez, Diaz testified that he did not “remem-
ber exactly, [I]t was a long time ago” but that Huembes “was
trying to make Miguel [Garzon] responsible for it.” He testified
that Rodriguez told Huembes that he did not know what he was
going to do with her, and Huembes stated, “I’m going to leave
right away.”
Documents bearing copies of the final two paychecks issued
to Huembes, one for her regular pay and one for accrued vaca-
tion, show the withholdings from each check in handwriting
beneath the copy of the checks. On both checks, after the total
of the withholdings, appears the following: “Termination
11/16/00.”
In mid-December, Portal testified that Rodriguez called him
and advised that Nunez, whom Portal had sent to the Hialeah
facility, was wearing a union pullover and that he, Rodriguez,
“did not want him working there because he didn’t want to
create any problems.”
The General Counsel presented Huembes as a rebuttal wit-
ness. As already noted, the interpreter was unable to translate
the word that Portal had attributed to her. Huembes denied
calling Garzon a maricon. Whether she did is immaterial since
Rodriguez did not discipline Huembes for allegedly calling
Garzon a maricon. Huembes repeated her testimony that she
asked Portal for a $1000 loan, not a $2000 loan.
RC ALUMINUM INDUSTRIES 947
2. Analysis and concluding findings
The Respondent, at the hearing, moved for dismissal of
paragraph 6 and subparagraphs 7(a) and (b) of the complaint
arguing that they are barred by Section 10(b) of the Act. Sub-
paragraph 7(a) alleges interrogation by Mestres and subpara-
graph 7(b) alleges a threat not to grant a wage increase. I have
credited the testimony of Mestres that Huembes approached
him and asked for a wage increase. Neither the statement that
Huembes attributed to Mestres, to ask the Union for a raise, nor
the response that he recalls giving, that the Union would raise
her salary through negotiations or “we’ll raise your salary,”
threaten denial of a wage increase. There is no complaint alle-
gation relating to a promise of a wage increase. Insofar as nei-
ther of the allegations in subparagraphs 7(a) and (b) are estab-
lished by credible evidence, I need not address whether they are
barred by Section 10(b).
I have found that Portal did condition a loan to Huembes
upon her not voting in the election. This incident preceded the
election. Portal’s offer to Huembes was an attempt to affect the
outcome of the election. Her alleged discharge from the
Hialeah facility by Rodriguez occurred almost 3 months after
the election. There is no evidence connecting the incident in-
volving Operations Manager Portal with the alleged discharge
by Rodriguez. Portal’s conduct constituted attempted interfer-
ence with the election process. That allegation, unrelated to the
allegation that the Respondent discharged Huembes in violation
of Section 8(a)(3), is alleged for the first time in the fourth
amended charge filed on March 30, 2001, more than 8 months
after the incident occurred. The incidents were “separate and
distinct acts carried out at different times, for different rea-
sons.” Carpenters Local 720 (Stone & Webster), 274 NLRB
1506, 1507 (1985). I find that paragraph 6 of the complaint is
barred by Section 10(b) and shall, therefore, recommend that it
be dismissed. The incident does reveal animus towards the
Union.
I shall address the evidence relating to the reduction in work
hours in section E, below.
The complaint alleges that Rodriguez informed employees
that they could not discuss the union and restricted employees
to their work areas to prevent them from discussing the Union.
Rodriguez did not deny that he informed Huembes that the
location at which she had been placed “was going to be my
workplace, that he didn’t want to see me talking with . . . any-
body around me, and that is why they had placed me there” and
that he “didn’t want the Union being mentioned.” The Respon-
dent presented no evidence of any prohibition restricting con-
versation among employees. The prohibition regarding speak-
ing with coworkers or mentioning the Union, stated by Rodri-
guez, was not restricted to solicitation during working time. By
informing Huembes that she was not to speak with anyone
around her or to mention the Union, the Respondent interfered
with employees’ exercise of their Section 7 rights in violation
of Section 8(a)(1) of the Act.
The complaint alleges that Rodriguez threatened an em-
ployee with discharge on November 16. There is no evidence of
any threat. As hereinafter discussed, I find that Huembes was
unlawfully discharged. I shall recommend that this allegation
be dismissed.
The complaint alleges that the Respondent discharged
Huembes because of her union activity. In assessing the evi-
dence regarding this allegation under the analytical framework
of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), I find that Huembes did engage in union activ-
ity and that the Respondent was fully aware of her prounion
sentiments. The undenied conversation in which Rodriguez
directed Huembes not to mention the Union confirms the ani-
mus of the Respondent towards employee union activity. I find
that the General Counsel has carried the burden of proving that
union activity was a substantial and motivating factor for Re-
spondent’s action. Manno Electric, 321 NLRB 278 (1996).
The Respondent does not contend that Huembes engaged in
conduct warranting discharge even in the absence of union
activity. It contends that she quit. Huembes testified that she
was fired. Garzon’s testimony, which is not mentioned in the
Respondent’s brief, admits that he reported to Rodriguez that
Huembes had accused him, Garzon, of being stupid for not
supporting the Union, that with the Union the employees would
have better benefits. Portal’s testimony reveals that, in Decem-
ber, Rodriguez was unwilling to permit a driver wearing a
prounion pullover shirt to work at the Hialeah facility. The
Respondent’s own document notes Huembes’ separation as
“Termination,” not “quit.” The Respondent presented no expla-
nation for the designation “Termination” on its own documents.
I do not credit the testimony of Rodriguez and Diaz that Huem-
bes stated that she quit or was leaving. Rodriguez did not toler-
ate union activity at the Hialeah facility. One month after rid-
ding the Hialeah facility of Huembes, Rodriguez prohibited
active union adherent Nunez from working there. The Respon-
dent has not rebutted the General Counsel’s prima facie case.
The probative evidence establishes that Huembes’ union activ-
ity was the motivating factor for Respondent’s action. By dis-
charging Alba Huembes because of her union activity, the Re-
spondent violated Section 8(a)(3) of the Act.
C. Roberto Espino
Espino worked at the Company for 11 years. At the time of
his termination on November 17, he was the shipping and re-
ceiving clerk at the building located at 2805 N.W. 75th Street.
Espino became involved in the organizational campaign well
before the election. In May, Espino had been called into an
office where President Casares and Vice President Mestres
asked if he was involved with the Union, noting that they had
received reports of his involvement including pictures of him at
a union meeting. There are no allegations relating to this meet-
ing, which occurred well outside the 10(b) period. Espino testi-
fied that he said nothing in that meeting. The Company was
clearly aware that Espino supported the Union since he served
as an observer for the Union on the day of the representation
election.
Espino testified that prior to the election he had regularly
worked 25 hours or more of overtime a week but that overtime
ceased for him and “more than half the plant,” including the
employees who worked with him and the drivers, after the elec-
tion. Espino’s pay records do not support this testimony. The
pay records reflect that Espino did regularly work overtime in
excess of 25 hours a week in January, February, and early
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD948
March, but his overtime fell to an average of less than 20 hours
a week from mid-March through June. In the 4 weeks preced-
ing the election, Espino worked 39.75 hours of overtime, an
approximate average of 10 hours a week. In the 4 weeks fol-
lowing the election, Espino worked 34.75 hours of overtime, an
approximate average of 8-1/2 hours a week.
On November 12 or 13, Espino discovered that his personal
cellular telephone needed charging so he began charging it in
his office, plugging the charger into an electrical receptacle. A
short time late, Espino discovered that his cellular telephone
was missing. He asked and learned that Vice President Mestres
had taken it. He went to Mestres who told him that he was
“stealing electricity.” Mestres handed the telephone to Espino
who testified that the cellular telephone was on and that it was
displaying the name and number of the last person that he had
spoken with on that telephone, Union Representative Gregory
Cisneros. Upon noticing this, Espino questioned what Mestres
was looking for and Mestres responded that “he already found
the phone that he was looking for.”
Mestres admits confiscating the telephone, which he testified
was on a table. When taking it, he stated to a couple of engi-
neers, “this is not allowed in the shop.” Mestres denied that he
turned on Espino’s cellular telephone. He testified that when
Espino came to retrieve the telephone he told him, “Please, do
not plug it into my power.”
Espino testified that the cellular telephone was being charged
in his office, and I find it incredible that he would have placed
the telephone outside of his office. Thus, accepting the testi-
mony of Mestres that the telephone was on a table, I find that it
was on a table in Espino’s office. Regarding Mestres assertion
that “this is not allowed in the shop,” the only written policy
published by the Company relating to cellular telephones is
dated September 27 and prohibits their use except during
breaks and at lunch. Espino was not using the telephone. There
is no written policy or testimony regarding oral promulgation to
employees of any prohibition regarding the use of personal
electrical devices such as radios, fans, or space heaters.
On the following morning, Espino testified that he discov-
ered that the locks in the shipping and receiving department had
been changed, including the locks to the gates through which
the company trucks entered and left the property as well as the
locks to the office, including his office. When the truckdrivers
tried “to get the trucks out,” they discovered that the gates were
locked. Espino tried to open the gates, but he was unable to do
so because there “were different locks from the ones that were
there before.” According to Espino, the security guard who
lived on the premises, Silvio Leon, had keys to the new locks
and opened the gates for the drivers. Espino testified that Op-
erations Manager Portal opened his office for him. Portal de-
nied that the locks were changed. Neither Leon nor any truck-
driver was called by either party to corroborate Espino or Por-
tal.
The next day, or the day thereafter, according to Espino, Por-
tal “removed [the gasoline credit cards] from all the drivers.”
The Company had six gasoline credit cards that the truckdrivers
used to fuel the trucks they drove. Espino testified that Portal
kept two of the cards at all times and would give him four cards
to give to the drivers. The drivers would return the cards to
Espino and “[I]f Angel [Portal] weren’t there I would keep
them.” Espino testified that, when he did this, he kept the cards
locked in his office. Notwithstanding the description of the
foregoing protocol, on the day in question, Espino testified that
Portal removed the cards “from all the drivers” and “he even
took away the one I had, also.”
Portal testified that, about 3 weeks before Espino was dis-
missed, he was unable to account for one of the gas cards.
Espino reported that it had not been returned to him, but the
driver said he had returned it to Espino. Upon reviewing the gas
receipts for that card, Portal noted that Espino’s signature ap-
peared upon several of them. He did not speak with Espino, but
reported the situation to his superior, Mestres. Prior irregulari-
ties regarding the gasoline credit cards had consisted of lost
cards, lost tickets, and the recording of incorrect information.
Mestres was occupied with other matters when he received
Portal’s report. When he addressed the gas card situation, he
noted that the receipts showed that Espino had signed for pre-
mium gas, purportedly for Ford F-150 pickup trucks, without
following standard procedure by recording the mileage of the
trucks. More disturbing was the fact that it appeared that gaso-
line was being purchased at “times out of the ordinary.” Mest-
res requested that a clerical obtain Espino’s timecards for the
relevant dates.
On November 17, about 2:30 p.m., Vice President Mestres
called Espino to his office. According to Espino. Mestres gave
him his regular check, a check for his vacation pay, and another
check for $2000 “for the time I had worked there.” Mestres
then told him that he “could not continue working with them
. . . because they had a lot of problems with me regarding the
Union . . . that he didn’t know why I had gone on the side of the
Union.” Espino testified that Mestres then stated that “we could
not believe it” since Espino had worked for the Company so
long. Espino denied that anything was mentioned regarding
gasoline credit cards, that he was accused of using the company
card to fill up his car with premium gas, or that he admitted
doing so. He testified that he cut the check for $2000 into two
pieces and placed it on Mestres’ desk stating that he did not
want it.
Contrary to Espino’s version of the discharge interview,
Mestres testified that, after he discovered the various purchases
for which Espino had signed when not on the timeclock, he
called Espino into his office. He showed him the gas tickets and
the times gas was purchased. He asked if the signature was his,
and Espino stated that it was. He then asked if Espino had any
explanation. Espino stated, “No, I do not,” and he then stated
that he knew that “sooner or later I was going to get caught.”
Mestres then told Espino, “I have two choices, I either prose-
cute you or I dismiss you. I’m going to take the option to dis-
miss you. . . . [G]o home.” Mestres denied giving Espino three
checks.
The following table, which I have prepared from Respon-
dent’s Exhibits 5, 6, and 7, summarizes the relevant dates and
times (to the nearest minute) reflected upon the gasoline re-
ceipts. Each receipt reflects that Espino purportedly purchased
gas for a Ford F-150 pickup truck, but no mileage for the truck
is shown. The “work time” entry is from Espino’s timecard.
RC ALUMINUM INDUSTRIES 949
Date of
Purchase
Time of
Purchase Work time
Amount of
Purchase
June 24 12:23 p.m. 12 noon. (left) $25.00
July 11 7:58 p.m. 6:30 p.m. (left) 27.88
July 31 3:46 p.m. 3:30 p.m. (left) 32.00
August 25 3:41 p.m. 3:30 p.m.(left) 28.00
September 2 6:50 a.m. 6:57 a.m. (ar-
rived)
20.00
September
22
5:02 p.m. 12 noon (left) 24.00
Total $156.88
Although counsel for the General Counsel recalled Huembes
to deny using the language attributed to her by Portal and Rod-
riguez, Espino was not recalled either to deny that he was con-
fronted with the documents that Mestres testified he presented
to him or to provide any explanation for the purchases shown to
have been made before and after his workdays.
Analysis and Concluding Findings
The complaint alleges that Mestres engaged in surveillance
by “scrolling though the memory” of Espino’s cellular tele-
phone and threatening employees with discharge for engaging
in union activities on November 17. It further alleges that the
Respondent “denied Roberto Espino access to his work areas”
and discharged him in violation of Section 8(a)(3) of the Act.
Regarding the cellular telephone, if, as he testified, Mestres’
only concern had been the theft of electricity, he could have
simply unplugged the charger. If he needed to confiscate some
item in order to get Espino’s attention, he could have confis-
cated the charger. The confiscation of Espino’s personal prop-
erty from his office suggests a different concern. Espino testi-
fied that the display on the telephone was activated, and I credit
that testimony. The Union had been certified on November 9,
and Espino had been a union observer at the election. The fact
that the display was activated when Espino retrieved the tele-
phones confirms that the Respondent was interested in whom
Espino had been in touch with recently. By confiscating and
activating the display on the cellular telephone, the Respondent
engaged in surveillance of employees’ union activities in viola-
tion of Section 8(a)(1) of the Act.
Although the complaint alleges that Espino was denied ac-
cess to his work area, Espino admitted that Portal opened his
office for him. At best, he was denied unsupervised access to
his work area. Espino testified that, when the truckdrivers tried
“to get the trucks out,” he went to unlock the gates and discov-
ered “different locks from the ones that were there before.”
Portal denied that the locks were changed in November. Al-
though the General Counsel presented truckdriver Nunez as a
witness, he was not questioned regarding being locked in be-
cause of the changed locks in November. Neither party called
Silvio Leon, the security person who actually lives on the prem-
ises. Thus, I am left with a one-on-one credibility resolution
between Espino who testified that the locks were changed and
Portal who testified that they were not. Since I did not conduct
this hearing, I can make no evaluation on the basis of de-
meanor. In circumstances such as this, there is no basis upon
which I can give more or less weight to the testimony of Espino
or Portal. See National Telephone Directory Corp., 319 NLRB
420, 422 (1995). I therefore give them equal weight, and I find
that the General Counsel has not established by the greater
weight of the evidence that the locks were changed. Accord-
ingly, I recommend that the allegation relating to denial of ac-
cess be dismissed.
The complaint alleges that Mestres threatened an employee
with discharge on November 17. There is no evidence of any
threat. As hereinafter discussed, I find that Espino was lawfully
discharged. I shall recommend that this allegation be dismissed.
The General Counsel established that the Respondent had
been aware since May that Espino was engaging in union ac-
tivities, and it bore animus towards employees who engaged in
union activity. The Board, in Roure Bertrand Dupont, 271
NLRB 443 (1984), notes that, under Wright Line, supra, al-
though the burden shifts “to the employer to demonstrate that
the same action would have taken place even in the absence of
the protected conduct,” the employer cannot “simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Id. In the
instant case, the General Counsel’s case was predicated upon
the testimony of Espino that Mestres terminated him because of
“problems with me [Espino] regarding the Union.” The Re-
spondent presented a legitimate reason for Espino’s termina-
tion, misuse of gasoline credit cards. At that point in the pro-
ceeding, the General Counsel, from a trial strategy standpoint,
could have recalled Espino to deny that he was presented with
the documents and/or presented evidence that Espino was
treated disparately or let the record stand. The General Counsel
chose the latter option.
Counsel for the General Counsel, in her brief, argues that the
Respondent presented no evidence that employees had been
discharged for “the same or equally serious infraction[s],” and
that it relied upon “an imaginary gas card policy.” The gas card
policy was not “imaginary.” Employees were given gas cards to
fuel company vehicles and, when doing so, recorded the mile-
age of the vehicle they were fueling and returned the cards to
Espino. Although Espino monitored the use of four credit cards,
giving them to the drivers and then receiving them back, he
acknowledged that he would then either give the cards to Portal
or, in Portal’s absence, lock them in his office.
Although the General Counsel argues that the Respondent
presented no evidence that employees had been discharged for
“the same or equally serious infraction[s],” the General Counsel
presented no evidence that employees had not been discharged
for such conduct. Portal’s testimony of prior problems regard-
ing use of the credit cards related to lost cards and tickets and
improper recording, not theft. So far as this record shows, the
situation involving Espino, the interim custodian of the cards,
was unprecedented.
I do not credit Espino’s general denial in his direct examina-
tion that, when he was terminated, nothing was mentioned re-
garding misuse of gasoline credit cards and that he did not ad-
mit doing so. His general denial is of little or no probative value
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD950
in view of the testimony of Mestres, corroborated by documen-
tary evidence, that Espino had misused a credit card. Espino’s
testimony that Portal “even took away the one I had, also,”
suggests that he had appropriated one of the cards to his own
use. Confirmation that he had in fact done so is established by
the testimony of Mestres that, when confronted with the tickets,
Espino confessed. The failure of Espino to testify in rebuttal
and to deny that he was confronted with the documents or to
deny that, when confronted with the documents, he stated that
he knew he was “going to get caught,” preclude any reliance
upon his general denials. See Jo-Del, Inc., 324 NLRB 1239,
1443 fn. 21 (1997). I find, consistent with the credible testi-
mony of Mestres, that Espino, when confronted with the gaso-
line purchase receipts, admitted that he realized that “sooner or
later” he was going to be caught.
Espino’s testimony that Portal assumed custody of the credit
cards at or about the time of his termination confirms that the
Respondent was concerned about their use. Documentary evi-
dence establishes more than $150 in gasoline purchases pur-
portedly for Ford F-150 trucks when Espino was not on the
clock. Espino had no explanation for those purchases. When he
acknowledged to Mestres that he knew he was going to be
caught, Espino did not argue that the Respondent had ever tol-
erated such conduct. There is no evidence that the Respondent
had previously encountered a situation where an employee had
charged the company credit card with more than $150 in unex-
plained gasoline purchases. When questioned about any prior
problems, Portal explained that if you “keep a tight rein, you
don’t have to worry about those things.” Espino was the em-
ployee responsible for holding the reins. Mestres informed
Espino that he could prosecute him or dismiss him and that he
was taking the option of dismissing him, “[G]o home.” Al-
though the Respondent has no document setting out offenses
that are punishable by termination, the absence of codified
procedures is not controlling. With regard to stealing, “[i]t is a
matter of common knowledge that employers do discharge for
such conduct.” Boland Marine & Mfg. Co., 280 NLRB 454,
463 (1986).
The Respondent’s evidence establishes not only that it had a
legitimate reason for terminating Espino, but also persuades
that the same action would have taken place in the absence of
any union activity on his part. I shall recommend that the alle-
gation that the Respondent unlawfully discharged Espino be-
cause of his union activity be dismissed.
D. Pedro Nunez
1. Facts
The complaint alleges that, on December 11, Portal interro-
gated an employee, made a statement relating to futility, and
threatened an employee with unspecified reprisals in violation
of Section 8(a)(1) of the Act. The foregoing allegations are
predicated upon a conversation between Nunez and Portal in
early December after Nunez was appointed as a union steward.
The conversation occurred in a hallway near the shipping and
receiving office. According to Nunez, Portal initiated the con-
versation by informing Portal that, if he continued to support
the Union, he would have “to wait at least four years in order to
earn $17 per hour.” Nunez responded that he did not care that
he would have to wait 4 years because, with “him,” an apparent
reference to Portal and the Company, he would earn only $1
more since “what he gives is just an increase of 25-cents per
year.” At this point, Nunez recalls that Portal said, “[O]kay,
now I know what I have to do with you.”
Portal agrees that he had a conversation in which $17 an
hour was mentioned. He recalls that Nunez stated to him that he
would soon “be making $17 an hour.” Portal responded by
saying that “the money . . . would be between the Union and
RC [the Company], not between me and him.” Portal denied
stating that he knew what he had to do with Nunez.
If Nunez had testified to a prior conversation, or to a longer
conversation, with Portal, there would be some logical context
in which I would be able to evaluate Portal’s alleged remarks.
The Company had refused to bargain with the Union, and
Kevin Wallace, district representative of the Union, testified
that there have been no contract negotiations. There is no evi-
dence that the Union had submitted any proposal that included
a pay scale providing immediate or incremental raises over a 4-
year period to $17 an hour for drivers. In order to credit Nunez,
I must find that Portal’s $17 figure was simply plucked from
thin air because Nunez testified to only one conversation and,
in his version of the conversation, the $17 figure was first men-
tioned by Portal. Portal’s testimony is logically consistent. Nu-
nez mentioned the $17 figure, and Portal responded that wages
were an issue between the Company and the Union. I credit
Portal. There is no evidence of any interrogation. Portal’s re-
sponse contained no threat of futility or unspecified reprisals. I
shall recommend that these allegations be dismissed.
At the end of the next workday, Portal directed Nunez to re-
port to the Hialeah plant, to make deliveries from there. Portal
testified that he selected Nunez because he was “one of our
better drivers” and had the most seniority. Nunez testified that
he worked at Hialeah for 2 days and a portion of a third day.
When at the Hialeah facility, the manager, who Nunez initially
called Armando Guitierrez, told him that, if he wanted to con-
tinue working at the Hialeah facility, he could teach him how to
assemble a window but “he didn’t want to know anything about
the Union.” In later testimony, Nunez confirmed that Guitierrez
and Rodriguez were “the same person.” The foregoing is al-
leged as a threat to deny work opportunities to employees if
they supported or assisted the Union. Unlike the direction to
Huembes, Nunez was not told not to mention the Union. Nu-
nez’s testimony establishes only that the manager, Rodriguez,
stated that he did not want to know anything about the Union.
This stated desire to remain ignorant did not constitute a threat.
On his third day at Hialeah, Nunez wore a union T-shirt to
work. After he made his second delivery, Rodriguez directed
him to report to Portal who had “a very special job” for him.
Although it is of little importance, Portal disagrees that Por-
tal worked at Hialeah for 3 days. He testified that Rodriguez
called him on the very first morning that Nunez reported to the
Hialeah facility and stated that “this gentleman [Nunez] had a
Union pullover on and that he did not want him working there
because he didn’t want to create any problems.” Portal told
Rodriguez to send Nunez back to report to him.
Nunez reported to Portal who informed him that he had “a
little job” for him. He took him to the building at 2600 N.W.
RC ALUMINUM INDUSTRIES 951
75th Street and assigned Nunez the task of breaking down
wooden boxes, a task Nunez testified that he performed for 3
days. Portal admits the job assignment, but asserts it was only
for “a day and a half at the most.” Nunez described this task as
very hard work, “a job for a beast.” I do not credit Portal’s tes-
timony that the job was “very easy.” He acknowledged that the
tools needed for this job included a crowbar. The job was com-
pleted by other employees, including shipping employees and
janitors, not truckdrivers.
2. Analysis and concluding findings
The complaint alleges, inter alia, that the Respondent vio-
lated Section 8(a)(3) by transferring Nunez “from his previous
work location” and by assigning him more onerous work. I find
that the assignment of Nunez to the task of breaking up boxes
constituted more onerous work. This assignment, which consti-
tuted a transfer of Nunez’ work location, followed Rodriguez’
refusal to permit Nunez to work at Hialeah specifically because
he was wearing a prounion pullover. The General Counsel has
established a prima facie case of discrimination in violation of
Section 8(a)(3) of the Act. The Respondent has not rebutted the
General Counsel’s case. Portal testified to a nondiscriminatory
rationale for assigning Nunez to Hialeah: he was one of the
Respondent’s better drivers and he had the most seniority. Had
this same rationale been applied when Nunez returned from the
Hialeah facility, he would have been returned to his driving
duties the morning after his return. The Respondent, by trans-
ferring Nunez from his regular job duties and assigning him
more onerous job duties because of his union activities violated
Section 8(a)(3) of the Act.
Counsel for the General Counsel, in her brief, argues that the
transfer of Nunez to the Hialeah facility violated the Act; how-
ever there is no such allegation in the complaint. Since this
transfer, like the transfer to the more onerous work at the build-
ing located at 2600 N.W. 75th Street, would constitute a trans-
fer “from his previous work location,” the remedy remains the
same and any additional finding would be cumulative.
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(3) by changing Nunez’ permanent work duties and
reducing his work hours. The allegation of changed work duties
is subsumed in the more onerous work allegation. Regarding
the alleged reduction in work hours, the record reflects that
Nunez worked 12 hours of overtime in the pay period ending
on December 6 and 3.5 hours of overtime during the pay period
ending December 13, the week that he was assigned the more
onerous work. There is no evidence showing that Nunez would
have received more than 3.5 hours of overtime if he had con-
tinued to drive from his normal work location. Thus there is
insufficient evidence upon which to base a finding that Nunez’
hours were discriminatorily reduced. I shall, therefore, recom-
mend that these allegations be dismissed. Notwithstanding the
foregoing, in view of my findings of unlawful discrimination
against Nunez, I shall order an appropriate make whole remedy.
E. The Reduction in Work Hours
1. Facts
Late in the afternoon of Friday, July 21, the day the election
had been held, employees working in the building at 2600 N.W.
75th Street were told not to report on Saturday, to return on
Monday, that there would be no more overtime. Although em-
ployee Jorge Piedra testified that there were “certain things”
that still needed to be done with regard to the Diplomat Hotel
job, his testimony does not establish that there was sufficient
work to justify overtime for the 30 employees that he recalls
were working in the building at the time. Beginning in Septem-
ber, employees were transferred to other locations, including
Huembes, who was transferred to Hialeah, and Piedra, who was
transferred to the building at 2805 N.W. 75th Street. Although
Piedra testified that he was not initially assigned overtime at his
new work location, he did not identify any employees who
were assigned overtime and he acknowledged that, when Mest-
res “needed some jobs to be done,” he was assigned overtime.
Piedra had demonstrated his support for the Union at rallies and
was appointed a union steward.
Vice President Mestres explained that the Company obtained
a 3-year lease on the building at 2600 75th Street to provide the
necessary space for assembly of windows for the Diplomat
Hotel, the Company’s major contract during this period. Pro-
duction was at its height during the first few months of the year
2000. In July, the Company’s normal production was sufficient
to supply the Diplomat Hotel job, and overtime was not needed.
Despite this, Mestres continued to assign overtime because
counsel had advised that the Company should “not alter any-
thing, . . . just keep the scenario the same. Even though you
don’t need overtime, you keep the overtime . . . in order not to
alter the result of the election.” After the election, the Company
took the action “long needed before the elections” and “stopped
the overtime.” In September, employees were laid off in accord
with seniority and transferred.
There are no unfair labor practice allegations relating to the
layoff and transfer of employees in September. Although the
initial charge in Case 12–CA–21207 alleged the layoffs as an
unfair labor practice, this allegation was deleted when the third
amended charge was filed on March 5, 2001.
There is no probative evidence contradicting Mestres that the
production work, as opposed to the installation work, relating to
the Diplomat Hotel contract did not require overtime as of July.
Counsel for the General Counsel, in her brief, argues that the
Respondent presented no “documentation showing the pro-
jected schedule” for completion of the project and that, there-
fore, an adverse inference must be drawn. I disagree. The Gen-
eral Counsel had the opportunity to contradict the testimony of
Mestres by establishing internal inconsistencies in his testi-
mony, by independent witnesses, or by documents obtained by
subpoena. The testimony of discriminatee Huembes, that
shortly before her transfer to Hialeah she had nothing to do,
confirms that the production work had declined. The transfers
of senior employees to other locations and the layoffs of junior
employees, actions not alleged as unfair labor practices, further
corroborate the testimony of Mestres.
Counsel for the General Counsel, in her brief, refers to the
overtime records of 21 employees “offered as a sampling” in
support of the allegation that the reduction in work hours vio-
lated Section 8(a)(3) of the Act. Neither the sample nor the
General Counsel identifies the facilities at which the employees
in the sample worked or the jobs that they performed. Counsel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD952
identifies various groups of employees in the sample including
those who received no overtime after July and those who began
receiving some overtime after several weeks. The only employ-
ees in the sample identified as prounion are Huembes and Pie-
dra. Although Huembes received no overtime after July, the
overtime record of employee Mendez, who also worked at the
Hialeah facility and with whom Huembes rode to work, is not
included in the sample. Prounion employee Piedra is included
in the group of employees whose overtime was restored.
2. Analysis and concluding findings
The complaint alleges that the Respondent, on or about July
21, reduced the work hours of unit employees, including
Espino, Alexis Avendano, Piedra, Jose Clavijo, Huembes, and
Franciso Cespedes because the named employees supported the
Union and to discourage employees from engaging in these
activities. There is no evidence establishing the union sentiment
of Avendano or Clavijo. Cespedes ceased working for the Re-
spondent in September. The Respondent acknowledges elimi-
nating all overtime in the facility located at 2600 N.W. 75th
Street after July 21. I have credited the testimony of Vice Pre-
side Mestres that this action was dictated by the absence of a
need for more production and that the only reason overtime was
not eliminated sooner was to avoid any appearance of interfer-
ence with the election. Espino continued to receive overtime
after July 21. Although there were some weeks after mid-
September that he did not receive overtime, in each of those
weeks Espino worked less than 40 hours of regular time. Piedra
acknowledged that when Mestres “needed some jobs to be
done” that he was assigned overtime. Piedra was working at the
2803 N.W. 75th Street facility. Huembes was not assigned
overtime, but there is no evidence that any other employees
performing the job to which she was assigned at the Hialeah
facility were assigned overtime. In short, there is no evidence
establishing a pattern of discrimination with regard to the as-
signment of overtime to known union adherents. I shall rec-
ommend that the 8(a)(3) aspect of this allegation be dismissed.
An employer is not obligated to bargain with a union regard-
ing a decision made prior to the beginning of its bargaining
obligation. When, as in the instant case, the employer has “de-
termined well before the election to work unit employees
through the election irrespective of actual work requirements
and then to effect . . . layoffs to bring staffing levels . . . into
conformity with production needs,” the failure of the employer
to notify the union does not violate Section 8(a)(5) of the Act.
Consolidated Printers, 305 NLRB 1061, 1067 (1992); see also
Tocco, Inc., 323 NLRB 480 fn. 2 (1997). In the instant case, the
Respondent had determined prior to the election that overtime
was no longer necessary to meet its production demands. De-
spite this, it continued to assign overtime up until the time of
the election in order to avoid any appearance of interference.
The elimination of overtime contemporaneously with the con-
clusion of the election was effectuation of an economic deci-
sion made well before the Respondent had an obligation to
bargain with the Union. I shall recommend that the 8(a)(5)
aspect of the allegation relating to reduction of work hours be
dismissed.
F. The Wage Increase
The complaint alleges that the Respondent granted a wage
increase on March 22, 2001. The Respondent stipulated that a
wage increase was granted to all plant employees in the spring
of 2001. Kevin Wallace, district representative of the Union,
testified that there was no notice to or bargaining with the Un-
ion regarding the increase, that the Respondent is challenging
the Union’s certification and there have been no contract nego-
tiations.
The General Counsel argues that the wage increase discour-
aged support for the Union in violation of Section 8(a)(3) of the
Act by demonstrating that increases could be “achieved without
assistance from the Union.” No pertinent case authority is cited
for this proposition. In Yoshi’s Japanese Restaurant & Jazz
House, 330 NLRB 1339 (2000), the only case cited by the Gen-
eral Counsel, the increases granted to specific employees pre-
ceded an election that was not held because “unfair labor prac-
tice intervened.” No evidence of any communications with
employees relating to the wage increase or to the Union with
regard to the wage increase was offered. In the absence of any
such evidence, I can find only that the Respondent acted in
derogation of its bargaining obligation. I shall recommend that
the 8(a)(3) aspect of this allegation be dismissed.
An employer’s bargaining obligation begins upon demon-
stration of a union’s majority status. Although an employer
may challenge a union’s election victory by refusing to bargain
and testing the union’s certification, any unilateral changes
made during that period are made “at its peril” unless there are
compelling economic considerations for doing so. Mike
O’Connor Chevrolet, 209 NLRB 701 (1973). Although the
Respondent has challenged the certification of the Union, its
unilateral action relating to employee wages, a mandatory sub-
ject of bargaining, was taken after the Union’s election victory
and certification on November 9. The Respondent presented no
evidence that the increase was given pursuant to past practice
or compelling economic circumstances. In granting a general
wage increase to unit employees without notice to or bargaining
with the Union, the Respondent violated Section 8(a)(5) of the
Act.
CONCLUSIONS OF LAW
1. By prohibiting prounion employees from speaking with
their coworkers, by prohibiting employees from discussing the
Union, and by engaging in surveillance of employees’ union
activities, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By transferring employees, assigning more onerous work
to employees, and discharging employees because of their un-
ion activities, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Act.
3. By unilaterally increasing employee wages without notice
to or bargaining with Local Union No, 272 and Shopmen’s
Local Union No. 698 of the International Association of
Bridge, Structural, Ornamental, and Reinforcing Iron Workers,
AFL–CIO, the Respondent has engaged in unfair labor prac-
RC ALUMINUM INDUSTRIES 953
tices affecting commerce within the meaning of Section 8(a)(1)
and (5) and Section 2(6) and (7) of the Act.
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 therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Alba
Huembes, it must offer her reinstatement and make her whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, 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).
The Respondent, in assigning Pedro Nunez more onerous du-
ties, assigned him from his normal truck driving duties. Al-
though the evidence is insufficient to support a finding that the
Respondent’s action deprived Nunez of overtime earnings,
review of appropriate records at the compliance stage of this
proceeding will reflect whether Nunez was deprived of over-
time earnings. If so, the Respondent must make him whole for
the loss of those earning, if any, plus interest as computed in
New Horizons for the Retarded, supra.
The Respondent will also be ordered to post an appropriate
notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, RC Aluminum Industries, Inc., and RC
Erectors, Inc., Miami, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Prohibiting prounion employees from speaking to other
employees or from mentioning the Union.
(b) Engaging in surveillance of employee union activities.
(c) Discharging, assigning more onerous work to, transfer-
ring, or otherwise discriminating against any employee for
supporting Local Union No. 272 and Shopmen’s Local Union
No. 698 of the International Association of Bridge, Structural,
Ornamental, and Reinforcing Iron Workers, AFL–CIO, or any
other union.
(d) Failing and refusing to notify and bargain with the Union
before making changes in the terms and conditions of employ-
ment of unit employees.
(e) 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.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Notify and bargain with Local Union No. 272 and Shop-
men’s Local Union No. 698 of the International Association of
Bridge, Structural, Ornamental, and Reinforcing Iron Workers,
AFL–CIO as the exclusive representative of unit employees
before making changes in the terms and condition of those
employees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees and truck drivers employed by the
Employer at its facilities in Miami-Dade County, Florida,
including the shipping clerk and the receiving clerk; but
excluding purchasing clerks, estimators, draftsmen, secre-
taries, receptionists, accounting employees, personnel
clerks, and all other office clerical employees, guards and
supervisors as defined in the Act.
(b) Within 14 days from the date of this Order, offer Alba
Huembes full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(c) Make Alba Huembes whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the deci-
sion.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Alba Huem-
bes and within 3 days thereafter notify her in writing that this
has been done and that the discharge will not be used against
her in any way.
(e) Make Pedro Nunez whole for any loss of earnings he may
have suffered as a result of the discrimination against him as set
forth in the remedy section of the decision.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cilities in Dade County, Florida, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-

4 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD954
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 6, 2000.
(h) 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 FURTJHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.