R.S. Service Systems, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 13, 2007

13-CA-043977 (N.L.R.B. Nov. 13, 2007)

JD(ATL)—29—07
Romeoville, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
R. S. SERVICE SYSTEMS, INC.
and CASE 13-CA-43977
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL
150, AFL-CIO
Neelam Kundra, Esq., and Richard
Andrews, Esq., for the Government.1
Robert E. Entin, Esq., for the Union.2
Randall Schroeder, President and
Owner, for the Company.3
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This is an interference
with employee rights and a wrongful layoff and refusal to recall from layoff of two
employees case. I heard this case in trial in Chicago, Illinois, on August 13, and
September 25, 2007. The case originates from a charge, filed by International Union of
Operating Engineers, Local 150, AFL-CIO (Union) on April 24, 2007, and amended on
June 6, 2007, against R. S. Service Systems, Inc. (Company). The prosecution of this
case was formalized on June 28, 2007, when the Acting Regional Director for Region 13
of the National Labor Relations Board (Board), acting in the name of the Board’s General
Counsel, issued a Complaint and Notice of Hearing (complaint) against the Company.4

1 I shall refer to Counsel for General Counsel as the Government.
2 I shall refer to Counsel for the Charging Party as the Union.
3 I shall refer to Respondent Owner and President Schroeder as Company President Schroeder or
Schroeder.
4 At trial the Government was granted permission to amend the complaint in certain minor respects
and to withdraw the complaint allegations that Supervisor Hutton on or about October 28, 2006,
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The complaint, as amended, alleges the Company, during the last five days of
October 2006, interfered with, restrained and coerced its employees in the exercise of
rights guaranteed in Section 7 of the National Labor Relations Act, as amended, (Act)
thus violating Section 8(a)(1) of the Act. Specifically it is alleged the Company violated
Section 8(a)(1) of the Act, during the specified time, by its supervisors and/or agents:
interrogating employees about their union activities and support for the Union; promising
employees higher wages if they left the Union; promising to pay employees to attend a
meeting to be polled about their union sentiments; promising employees continued
employment if they signed a petition to decertify the Union; threatening employees with
job loss if they did not sign a petition to decertify the Union; promising employees higher
wages and benefits if they signed a petition to decertify the Union; drafting a petition to
decertify the Union; soliciting employees to sign the decertification petition; promising to
pay an employee’s wages for eight hours to take the decertification petition to the Board;
and, requiring an employee to deliver the petition to decertify the Union to the Board and
driving the employee to the Board. It is specifically alleged the Company violated
Section 8(a)(3) of the Act by on or about October 27, 2006, laying off and failing to
recall from layoff its employees Oscar Perez and John Spence.
The Company timely filed a letter in response to the complaint, which letter has
been considered its answer to the complaint, in which it denied all allegations in the
complaint; however, at trial, the Company admitted certain complaint allegations
including the allegation it is an employer engaged in commerce within the meaning of the
Act and is subject to the Board’s jurisdiction.
The parties were given full opportunity to participate, to introduce relevant
evidence, to examine and cross-examine witnesses, and to file briefs. I carefully
observed the demeanor of the witnesses as they testified. I have studied the whole
record,5 the post trial briefs, and the authorities cited therein. Based on more detailed

threatened its employees with job loss and subcontracting out their work if they did not sign a
petition to decertify the Union.
5 Regarding the official record, there is a Volume 1[received August 27, 2007] and a “corrected”
Volume 1[received September 4, 2007] provided by the official court reporting service. The court
reporting service provided a cover letter [August 31, 2007], with the copy of the corrected Volume
1 that I was provided. After an investigation I was advised by the court reporting service that
Government Counsel telephoned their offices on August 30, 2007, with questions concerning
certain wordings on transcript pages 54 and 56. Government Counsel unilaterally contacted the
court reporting service without notice to the parties and without notice to or permission from the
Court. The portions of the transcript that Government Counsel requested further review of by the
court reporting service, and which were corrected by the court reporting service, provided a clearer
version of the record in support of the Government’s case. I accept, as correct, the corrected
version of Volume 1. After being apprised by the court reporting service of Government
Counsel’s actions I requested, and the court reporting service provided, a letter of certification and
explanation indicating the corrected version of Volume 1 was accurate. Government Counsel’s
unilateral action, albeit perhaps well intentioned, is very troubling because there was clearly a
failure to follow proper procedure [filing a motion to correct transcript]. Such unilateral action has
the potential of casting an unnecessary shadow over the integrity of Board transcripts.
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findings and analysis below, I conclude and find the Company violated the Act
substantially as alleged in the complaint.
Findings of Fact
I. Jurisdiction, Labor Organization Status, and Supervisor/Agency Status
The Company is an Illinois corporation with an office and place of business in
Romeoville, Illinois, where it is, and has been, engaged in the underground directional
boring for cable installation. During the twelve months ending December 31, 2006, a
representative period, the Company purchased and received at its Romeoville, Illinois,
location goods and materials valued in excess of $50,000 directly from points outside the
State of Illinois. The evidence establishes, the parties admit, and I find, the Company is
an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the
Act.
The parties admit, and I find, the Union is a labor organization within the meaning
of Section 2(5) of the Act.
It is admitted that Company President Schroeder and Supervisors Tom Hutton
(Supervisor Hutton) and Carl Borovicka (Supervisor Borovicka) are supervisors and
agents of the Company within the meaning of Section 2(11) and (13) of the Act.
II. Alleged Unfair Labor Practices
A. Background
Company President Schroeder founded the Company in 1984 and is its owner.
The Company’s primary customer, for underground utility installations, is Comcast Cable
Company. Work is accomplished by a crew, ideally consisting of a locator, an operator
and one or two laborers. Areas where underground cables are to be placed must be
carefully marked by JULIE6 so that other underground utilities are not damaged or
disturbed. It appears underground utilities must be separated by twenty four inches. The
Company utilizes different drill head sizes when installing cables based on the various
cable sizes. The Company normally fields 5 crews per day. The winter months are less
productive because of the difficulty of drilling when the surface of the earth is frozen.
President Schroeder testified the Company has had a collective bargaining
agreement and relationship with the Union since 1997. The parties most recent collective
bargaining agreement expired December 31, 2004, but has by its terms, rolled over from
year to year thereafter.

6 JULIE is a service in the State of Illinois that marks the location of electric, telephone, gas and
other utilities. Before any new or additional utilities can be installed that service must be utilized
by the installing company.
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On October 30, 2006, a decertification, or removal of representative petition, was
filed with the Board by employee Jose Ibarra and processed as 13-RD-2546. Thereafter
the Regional Director for Region 13 of the Board informed Ibarra, and the other parties,
his office had investigated the petition and decided to dismiss it based on “substantial
participation” by the Company in the preparation of the petition and as such the petition
was “tainted.” There were 11 employees in the unit at the time Ibarra filed the petition.7
On October 30, 2006, Company President Schroeder sent the Union a letter
notifying the Union the Company desired to terminate the parties’ collective-bargaining
agreement effective December 31, 2006. Schroeder testified he sent his October 30 letter
because he learned from Supervisor Borovicka the employees no longer wanted the
Union to represent them. On November 17, 2006, the Union’s General Counsel
responded to Schroeder’s letter stating, “[y]our letter seeking to terminate [the]
agreement invokes your obligation to bargain over a successor agreement.” The Union
advised that a failure to negotiate for a successor agreement would result “in a rollover of
the current agreement which will then remain in effect until December 31, 2007.”
B. Layoff and Refusal to Recall Perez and Spence
1. Complaint allegations
It is alleged at paragraph VI of the Complaint that on or about October 27, 2006,
the Company laid off and thereafter refused to recall from lay off its employees Oscar
Perez and John Spence because they refrained from signing a petition to decertify the
Union.
a. Oscar Perez
Perez commenced working for the Company in 1993, and except for some limited
work for other employers, worked there until October 25, 2006. Perez worked as a
locator and operator installing underground utilities, namely, television cables. Perez
belonged to the Union and wore union stickers at work on his hard hat. Perez’s
immediate supervisor was Carl Borovicka. As just noted Perez’s last day of work was
October 25, 2006. Perez was told, by either Supervisor Borovicka or Supervisor Hutton,
he would not work on Thursday October 26 and Friday October 27, but was to report for
work on Wednesday November 1, 2006. Perez visited the Company at noon on Friday
October 27, 2006, to pick up his pay check. After getting his check and starting to drive
away he heard Company President Schroeder whistle. Perez returned to Schroeder in the
parking lot where they talked. Schroeder spoke about paying Perez by the foot for cable
installation or about Perez buying his own equipment, starting his own business and
working for the Company as a subcontractor. Schroeder then invited Perez to his office
where he continued to talk about pay by the foot for work or Perez being a subcontractor.
Schroeder told Perez he would need a lot of money to start his own business. Rich Gray,

7 The 11 employees were: Jose Ibarra, Clayton Marrnheim, Manuel Masso, Juan Peres, Oscar Perez,
Refugio Rico, Refugio Ruiz, Ascension Sarmiento, John Spence, Joaquin Valadez and Ferando
Zenon.
JD(ATL)—29—07
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whom Perez identified as a Company supervisor, joined Perez and Schroeder in the
office. Gray also emphasized how much it would take to start a company.
Perez stated President Schroeder then changed the subject and asked Perez why
he liked the Union. Perez explained he liked the family insurance the Union provided.
President Schroeder asked about paying Perez more so he could buy his own insurance.
After some silence, Schroeder said no, that Perez would be paying a lot of money for
insurance. According to Perez, Schroeder then said they would have a meeting on
Monday and take a vote to see who wanted the Union and who did not. Perez told
Schroeder he was not scheduled to work Monday or Tuesday. President Schroeder asked
Gray why Perez was not working those days. Gray said the Company did not have work
ready for Perez those two days. Schroeder told Perez to come in on Monday at 7 a.m.
and he would pay him 2 hours for showing up. Perez wanted to know how that would
work as the other employees reported at 6 a.m.
Perez had never been asked to report for a meeting like this before. Perez
reported on Monday at approximately 6:50 a.m. and met with fellow workers in the
parking lot. Perez asked if they were ready for the meeting, however, the employees did
not know of an employee meeting. Perez asked Supervisor Hutton about the meeting and
was told there was no meeting. Perez told Hutton, President Schroeder had told him to
come in at 7 a.m. for a meeting and a vote on whether the employees wanted the Union or
not. Supervisor Hutton asked Perez if he was going to sign a paper so he could get rid of
the Union. Perez said he was not. Perez told Hutton if there was no meeting he was
going to sign in for the two hours of pay Company President Schroeder had promised
him. Supervisor Hutton told Perez if he would go downtown to the Board’s offices and
sign up for no union he could get paid for the full day. Perez told Supervisor Hutton he
was not going to sign anything except he was just going into the office to sign for the 2
hours he had been promised for showing up.
Perez went to the office and asked Supervisor Borovicka where the meeting was
to take place. He was told there was no meeting. Borovicka asked Perez if he was going
to sign the paper for getting rid of the Union. Perez said he was not and asked where was
President Schroeder. Borovicka said Schroeder was in his office but asked Perez to wait
while Borovicka spoke with Schroeder. Shortly thereafter Schroeder came out of his
office and told Perez he thought Perez was going to change his mind and sign the union
paper. Perez said he was not. Company President Schroeder responded; “whoever
sign[s] the paper is going to work here forever, and whoever doesn’t sign it don’t work
here no more.” Schroeder stepped away then returned and again stated to Perez, “if you
sign it, you work here forever, [i]f you won’t you don’t work here no more.” Perez again
said he was not going to sign the paper and Schroeder started to walk away. Perez asked
if he was fired or laid off and could he collect unemployment. Schroeder did not
respond. Perez collected some of his personal tools and left the Company area.
b. Company’s Position on Perez
Company President Schroeder denied laying off Perez. He said Perez told him, at
a meeting to decide who wanted the winter off, that “he was going to buy his own
JD(ATL)—29—07
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machine,” or “go to work for his brother,” or “go to Mexico.” Schroeder told Perez
“fine.” Schroeder acknowledged the Company did not frequently layoff Perez.
Schroeder explained Perez, “took as much time off as he wanted,” that Perez would, “go
back to Mexico one, two months at a time.” Schroeder said that when Perez came back,
if the Company had work, “we’d hire him back.” Schroeder, however, acknowledged
that Perez “was actually one of those employees that generally worked year round . . .
when he was in the United States.” Construction Manager James Gray testified Oscar
Perez wanted to start his own business in October 2006, but was laid off because work
was slow.
c. Discussion and Certain Conclusions Regarding Perez
Before addressing the lay off and refusal to recall allegations related to Perez it is
helpful to consider other allegations, related to Perez, namely that the Company
interfered with restrained and coerced Perez in the exercise of his rights guaranteed by
the Act. Specifically, it is alleged that on October 27 and/or 30, 2006, Company
President Schroeder: unlawfully interrogated Perez; promised Perez higher wages if he
left the Union; promised to pay Perez to attend a meeting to be polled about his support
for the Union; promised Perez continued employment if he signed a petition to decertify
the Union; and threatened Perez with job lose if he did not sign a petition to decertify the
Union.
It is alleged that on October 30, 2006, Supervisors Hutton and Borovicka
interrogated Perez about his activities and support for the Union. Additionally, it is
alleged Hutton promised to pay Perez 8 hours of wages to take a decertification petition
to the Board’s offices.
I note certain guiding principles before I address the allegations of interrogation
by Company President Schroeder and other supervisors. Interrogation is not, by itself, a
per se violation of Section 8(a)(1) of the Act. The test for determining the legality of
employee interrogation regarding union sympathies is whether under all the
circumstances the interrogation reasonably tends to restrain, coerce, or interfere with
rights guaranteed employees by the Act. Under this totality of circumstances approach
consideration is given to; whether the interrogated employee is an open or active
supporter of the union, the background surrounding the interrogation, the nature and
purpose of the information sought, the identity of the questioner, the place and/or method
of the interrogation, and the truthfulness of any reply by the questioned employee.
Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub. nom. H.E.R.E Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir 1985). The above factors are not to be mechanically
applied but rather are to be useful indicia that serve as a starting point for assessing the
totality of the circumstances. That the interrogation might be courteous and low keyed
instead of boisterous, rude, and profane does not alter the case.
I credit Perez’s uncontradicted testimony regarding his conversations with
Company President Schroeder and Supervisors Hutton and Borovicka.
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Company President Schroeder actively sought out Perez in the Company parking
lot on October 27, 2006, when Perez came by to pick up his pay check. After talking
with Perez in the parking lot about paying Perez in a different manner or Perez becoming
an independent contractor Schroeder then invited Perez to Schroeder’s office where he
changed the subject and talked about the Union. Schroeder asked Perez why he liked the
Union. Perez replied that he liked the Union’s family insurance coverage. Company
President Schroeder asked what if the Company paid Perez more in wages so he could
buy his own family insurance.
The questioning by Schroeder was coercive for a number of reasons. First, it took
place at or about the time the Company was attempting to have, or assist in having, the
Union decertified as its employees’ collective bargaining representative. Second, the
Company was also attempting to terminate its collective bargaining relationship with the
Union. Third, the Company was attempting to ascertain why its employees favored the
Union so it could take action, legal or otherwise, to rid itself of its bargaining obligations
and its employees’ relationship with the Union. The third reason is demonstrated by the
fact that when Perez said he liked the Union’s family insurance, Company President
Schroeder offered to pay Perez more in wages so Perez would not have a need for nor
like the Union. Schroeder took Perez to Schroeder’s office to interrogate him thus
making Perez mindful Schroeder controlled his livelihood. I find, considering the totality
of the circumstances as outlined above, Schroeder’s interrogation of Perez violated
Section 8(a)(1) of the Act. I likewise find Company President Schroeder’s offer to pay
Perez additional wages for the purpose of allowing Perez to purchase family insurance on
his own without any need for insurance from the Union also violated Section 8(a)(1) of
the Act, as a promise of higher wages to entice Perez to leave the Union furthering
Schroeder’s goal of ridding the Company of any obligations it had to the Union.
Company President Schroeder’s overall conduct was directed toward ascertaining why
his employees favored continued Union representation and then to eliminate, by any
means lawful or otherwise, his employees’ need for the Union.
In this same office meeting on October 27, Company President Schroeder told
Perez the Company would have a meeting with its employees on Monday October 30, for
the purpose of taking a poll to see which employees wanted the Union and which did not.
Perez told Schroeder he was not scheduled to work Monday or Tuesday. Schroeder
asked Perez to show for the Monday polling anyway and he would pay him 2 hours
wages for doing so. Perez had never been asked to show up for such a meeting before.
Perez showed for the Monday morning meeting only to find out from fellow workers and
supervision that no employee meeting was scheduled. When Perez was told by
Supervisor Hutton there was no meeting, Perez told Hutton, Company President
Schroeder had told him there would be a meeting so the employees could vote on
whether they wanted the Union or not. Supervisor Hutton then asked Perez if he was
going to sign the paper to get rid of the Union. Perez said he was not. Perez told Hutton
if there was no meeting he was going to go to the office and sign up for the two hours
wages he had been promised. At that point Supervisor Hutton told Perez if he would go
downtown to the Board’s offices and sign the paper not to have a Union he would be paid
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for a full work day. Perez declined and signed only for the two hours of work he had
been promised.
I find, as alleged, that Company President Schroeder interfered with Perez’s
protected rights when he offered Perez two hours wages to show up for a polling of the
employees’ union sentiments. The Company offered no valid defense for its actions.
I likewise find Supervisor Hutton’s questioning of Perez about whether he was
going to sign a paper to get rid of the Union to be coercive inasmuch as it was a
continuation of the Company’s unlawful efforts to rid itself of the Union and its
bargaining obligations. No legitimate explanation was, or, for that matter and in this
context, could have been offered for Hutton’s inquiry. Simply stated this was just an
additional unlawful action in a series of unlawful coercive actions by Company officials.
It is also coercive interference for the Company, as Supervisor Hutton did, to offer Perez
a full days pay to go to the Board’s downtown offices and sign a petition to not have a
Union, and I so find.
On the same Monday, following his meeting with Supervisor Hutton, Perez
encountered Supervisor Borovicka while trying to sign for his two hours of show up pay.
Perez asked Borovicka about an employee meeting and is again told there is no meeting.
Supervisor Borovicka asks Perez if he is going to sign the paper to get rid of the Union.
Perez replied he was not going to sign anything and asked about Company President
Schroeder. Borovicka tells Perez Schroeder is in his office but asked him to wait so
Borovicka could speak first with Schroeder. Shortly thereafter Schroeder came out of his
office and told Perez he thought Perez was going to change his mind and sign the union
related paper. Perez again replied he was not going to sign it and Company President
Schroeder stated that whomever signed the paper could work at the Company forever and
whomever did not would not work for the Company anymore. Perez replied again that he
was not going to sign the paper and Schroeder repeated his comments about those who
signed would work and those who did not would not work any more for the Company.
The questioning of Perez by Borovicka was a continuation of the Company’s deliberately
coercive actions against Perez and violated Section 8(a)(1). Company President
Schroeder’s repeated comments to Perez about his future with, or separation from, the
Company, based on whether he signed a petition to get rid of the Union or not, clearly
constituted unlawful interference in violation of Section 8(a)(1) of the Act and I so find.
I turn now to the Company’s lay off and failure to recall Perez which is alleged to
violate Section 8(a)(3) and (1) of the Act.
To establish a violation of Section 8(a)(3) of the Act, the government must prove,
by a preponderance of the evidence, that an individual’s protected activity was a
motivating factor in the employer’s action. Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Once the
government makes this showing, the burden of persuasion then shifts to the employer to
prove its affirmative defense that it would have taken the same action even in the absence
of the protected conduct. To sustain its burden the government must show that the
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employee was engaged in protected activity, that the employer was aware of that activity,
that the activity or the employee’s union affiliation was a substantial or motivating reason
for the employer’s action, and, there was a causal connection between the employer’s
animus and its challenged conduct or decision. The government may meet its Wright
Line, supra, burden with evidence short of direct evidence of motivation, i.e. inferential
evidence arising from a variety of circumstances such as union animus, timing or pretext
may sustain the government’s burden. Furthermore, it may be found that where an
employer’s proffered non-discriminatory motivational explanation is false, even in the
absence of direct evidence of motivation, the trier of fact may infer unlawful motivation.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Flour Daniel,
Inc., 304 NLRB 970 (1991). Motivation of union animus may be inferred from the
record as a whole, where an employer’s proffered explanation is implausible or a
combination of factors circumstantially support such inference. Union Tribune Co. v.
NLRB, 1 F.3d 486, 490-492 (7th Cir. 1993). Direct evidence of union animus is not
required to support such inference. NLRB v. 50-White Freight Lines, Inc., 969 F.2d 401
(7th Cir. 1992).
First, Perez belonged to the Union and wore union stickers at work on his hard
hat. Company President Schroeder asked Perez, on the last day Perez worked, what he
liked about the Union. Perez was asked by Supervisors Hutton and Borovicka if he was
going to sign the paper to get rid of the Union at the Company. Perez continually
expressed his support for the Union even under intense pressure from the Company to
disavow his support and sign a decertification petition to remove or get rid of the Union
at the Company. It is clear Perez’s continued support for the Union brought about his
demise at the Company. Company President Schroeder made that absolutely clear when
he told Perez twice at the end of Perez’s employment that he could work at the Company
“forever” if he would just sign the paper to get rid of the Union or if he refused he would
“work…no more” for the Company. Perez declined to sign the paper and his employment
ended at that time.
The Company failed to establish, in any way, that it would have laid Perez off in
the absence of his noted conduct. I discredit Company President Schroeder’s testimony
that Perez was not laid off that he simply wanted time to go to Mexico, or buy his own
equipment, or go to work for his brother or that Perez just took as much time off work as
he desired. I find these stated reasons to simply be post hoc justifications. I find, as
alleged, that Perez’s layoff and the Company’s refusal to recall him violated Section
8(a)(3) and (1) of the Act.
d. Spence
John Spence worked for the Company, except for certain absences, from 1998
until October 2006. Spence worked as a locator and crew leader for Supervisor
Borovicka and had been a member of the Union since 1998. Spence’s job duties included
driving his crew to the job site and observing that other utilities in the area had been
properly identified and marked before he and the crew installed underground cable lines.
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Spence’s last day of work was Thursday, October 26, 2006. Spence said work
was “getting slow” and Supervisor Borovicka told him and his crew there would be no
work for them on Friday, October 27 or Monday, October 30, 2006, but for Spence to call
in about work for Tuesday, October 31, 2006, and there after.
Spence testified he talked with fellow worker Perez on the telephone on Monday,
October 30, 2006. Spence asked Perez if he had heard anything about work. Perez
responded asking Spence if he had heard the Company had asked Perez to come to the
Company on Monday to sign a paper to get rid of the Union. Spence had not heard of
any efforts to get rid of the Union. Perez told Spence Company President Schroeder was
going to pay him 2 hours for showing up on Monday.
Spence said that as a result of his telephone call with Perez, he telephoned
Supervisor Borovicka on Tuesday, October 31, 2006, and asked if what he had heard was
true that Company President Schroeder was trying to get rid of the Union. According to
Spence, Supervisor Borovicka responded; “that’s correct…either you sign the papers,
you’re working; if you don’t, you’re not working.” Spence told Borovicka he was not
going to sign such papers and asked, “so can I go down and collect unemployment.”
Borovicka told Spence he “might as well go and sign up” for unemployment. Spence
thereafter filed for and received unemployment compensation. Spence testified he was
never thereafter recalled by the Company.
Spence learned in late May or early June 2007, the Company might be looking for
workers with a commercial drivers license (CDL). Spence telephoned Supervisor
Borovicka to find out if that was accurate. Borovicka said they were looking for CDL’s
and told Spence “as far as I am concerned you’re hired” but added Company President
Schroeder was on vacation and he would have to first speak with Schroeder about
Spence. Borovicka never called and after a week or so Spence telephoned Borovicka.
Borovicka told Spence Company President Schroeder had returned from vacation and he
had spoken with Schroeder about Spence returning to work but Schroeder had said he
could not use Spence at that time.
Spence testified he had no disciplinary actions related to absenteeism, tardiness or
work performance. Spence received a cash bonus for “Employee of the Year” in 2002.
Spence and his crew received 12 to 15 bonuses for the amounts of work accomplished in
several single weeks.
Spence testified he hit a telephone line in June 2004 while drilling and he and his
crew were off work 3 days while the incident was investigated. Supervisor Borovicka’s
investigation determined it was not the crew’s fault. Spence and crew thereafter returned
and completed the job. Spence testified he was never disciplined for this or any other
damages. Spence said he never went to work impaired and was never asked to reimburse
the Company for any damages to equipment, specifically never asked to reimburse the
Company for damage to a drill heads or a sound devices.
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Spence suffered an on the job injury December 2, 2004, and was away from work
until April 24, 2005. Spence testified he had foot surgery February 10, 2006, but the
injury was not work related and he did not receive Workmen’s Compensation for this
medical absence. Spence remained away from work after the foot surgery until July
2006.
e. Company’s Position
Company President Schroeder, testifying as a witness for Government Counsel,
stated Spence had a poor work performance record and no one wanted to work with him.
Schroeder said his supervisors were always complaining about Spence. Schroeder
testified it had been reported to him by his supervisors that Spence had reported to work
hung over not sober, but he had never witnessed such. Company President Schroeder
said Spence had an absenteeism and tardiness problem and had been written up for his
absentee problem but not his tardiness.
Schroeder denied the Company gave, “Employee of the Year” awards but said he
may have jokingly mentioned, at end of the year parties, about “Employee of the Year”
awards. Schroeder said the Company had, at times, given bonuses to employees who
performed well.
Schroeder testified Spence had $100,000 worth of damage to equipment over the
years at the Company. Schroeder explained Spencer had damaged equipment at least
once a year, but added; “They all do, you know. They all hit things.” Schroeder
explained Spence had damaged drill heads and sound devices but stated Spence had
never been asked to pay for such damages. Schroeder said, “I’d ask him nicely not to do
it again, please.” Company President Schroeder said he did not lay Spence off that
Spence “had the last seven winters off, he wanted the winter off.”
Construction Manager Gray testified Spence was a “problem child” because no
body wanted to work with him. Gray stated Spence seemed to always get hurt on the job
and was always looking for an excuse not to work all the time. Construction Manager
Gray testified Spence’s work performance was such that he was reduced from a locator to
operator about a year before the events herein. Gray said Spence was the lowest producer
and he thought Spence also had family problems. Gray testified it had been reported to
him that Spence had come to work with the smell of alcohol. Construction Manager
Gray acknowledged however that he trusted Spence to continue to drive his crew and
equipment to job sites notwithstanding reports Spence smelled of alcohol.
I turn now to whether the Company’s actions toward Spence violated the Act. I
credit Spence’s testimony. He was a sincere witness who, I am persuaded, testified
truthfully. I note Spence, a long time employee and Union member, along with his crew,
was off work for a couple or so days in late October due to a lull in assignments. Spence
was instructed by his supervisor, Borovicka that at the end of the lull in assignments he
should telephone Borovicka about additional work. During that two or three day absence
Spence telephoned fellow worker Perez to discuss available work. In his conversation
JD(ATL)—29—07
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with Perez, Spence testified he learned Company President Schroeder had asked Perez to
come to the Company to sign a petition to get rid of the Union. Spence had not heard any
rumors about getting rid of the Union at the Company. The next day Spence telephoned
Supervisor Borovicka and asked if it was true that Company President Schroeder was
trying to get rid of the Union. Borovicka told Spence it was true that Spence could sign a
paper getting rid of the Union and continue working at the Company or if he did not he
could not continue working at the Company. Spence told Supervisor Borovicka he was
not going to sign any paper and asked if he should sign up for unemployment. Borovicka
told Spence to go ahead and sign up, which he did and received unemployment.
Although it has not been demonstrated that Spence’s strong union sentiments
were known to the Company before the end of October 2006, he made those views
clearly known when he told Supervisor Borovicka he would not sign a petition to help the
Company get rid of the Union even if it cost him his job. Spence’s protected activities
resulted in his immediate layoff. I reject the Company’s contention that Spence’s layoff
was brought about by his history of absenteeism, tardiness or damage to Company
properties. First, I credit Spence’s testimony that he did not have absenteeism or
tardiness problems. As noted earlier, Spence impressed me as a candid and truthful
witness. Additionally, I note the Company produced no records to support such problems
or that it had disciplined Spence in that regard. The timing of the Company’s action
refutes a claim it was based on anything other than his failure to sign the petition to get
rid of the Union. Further, I reject the Company’s contention Spence had caused
excessive damage to Company property. Again, the Company offered no documentation
of damages and even if documented damages could have been shown during Spence’s
work span with the Company it would, at best, only establish that the Company tolerated
Spence’s work performance. Spence credibly denied he and his crew were responsible
for any damages. I also note Spence was “Employee of the Year” and he and his crew
received numerous job performance awards at the Company. The Company failed to
provide any direct or actual showing that Spence ever reported for work impaired by
alcohol. In fact the Company continued to utilize Spence to drive its employees and
equipment to job sites. I reject Construction Manager Gray’s testimony that Spence was
this “problem child” of an employee. No records were produced to support any such
contention. In summary, I find the Company violated Section 8(a)(3) and (1) of the Act
when it laid off Spence at the end of October 2006.
I find the Company failed to recall or reinstate Spence in late May or early June
2007, because of his protected activities in violation of Section 8(a)(3) of the Act. The
Company needed workers with CDL qualifications and Supervisor Borovicka specifically
told Spence he was hired but he had to clear it with Company President Schroeder.
Schroeder refused to allow Spence to be recalled even though he was qualified, needed,
and his immediate supervisor wanted him. The Company advanced no valid reason for
President Schroeder’s refusal to allow Spence to be recalled.
Finally, I find Supervisor Borovicka made an unlawful promise of benefits and an
unlawful threat of a loss of benefits in violation of the Act when he told Spence on
JD(ATL)—29—07
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October 31, 2006, that if he would sign the petition to get rid of the Union he could keep
his job or if he refused he would lose his job.
2. Employee Ibarra and the Petition
On October 30, 2006, employee operator Jose Ibarra reported, as usual, for
scheduled work at the Company shortly before 6 a.m. when Ibarra walked into the office
for materials to get ready for work his Supervisor, Hutton, approached him with a paper.
According to Ibarra, Supervisor Hutton gave him a white loose leaf paper with writing
thereon which he read. The paper stated the employees did not want the Union at the
Company. Supervisor Hutton asked Ibarra if he would sign the paper. Ibarra testified he
thought about it and then signed the paper. Ibarra stated employee Juan Perez was also
present for the exchange but noted Juan Perez did not understand English. Ibarra
translated for Perez what Supervisor Hutton had told him. Thereafter Juan Perez signed
the paper in Ibarra’s presence. Ibarra said two other employees signed the paper, namely,
Refugio Ruiz and Joaquin, whose last name he did not know.8
Ibarra returned the petition to Supervisor Hutton that morning with four
signatures on it. Hutton asked Ibarra if he would deliver the paper to the National Labor
Relations Board. Ibarra agreed and supervisor Hutton drove Ibarra to the Board’s offices
in downtown Chicago, where Ibarra presented the paper to a Board Agent who in turn
prepared a Petition to Decertify the Union which Ibarra signed.
Ibarra gave a sworn affidavit to the Board Agent at the time he filed the petition.
Ibarra acknowledged through questioning by Government Counsel, that his affidavit
reflected Supervisor Hutton had told him and his three co-workers that morning, “that it
could be better for us if we signed the paper, getting higher wages and benefits.” When
confronted with his affidavit Ibarra explained that Supervisor Hutton made those
comments because of prior conversations the employees had in Hutton‘s presence, but
not directed toward him. Ibarra explained, “We already had conversations prior to that
morning about our decisions and our feelings about the Union and what they were doing
and what they weren’t doing. So he knew everything we’ve talked about.” During
examination by Union Counsel, Ibarra specifically denied Supervisor Hutton told him,
and the others, it would be better for them if they signed the paper getting higher wages
and benefits. Ibarra explained to Union Counsel that he and some of his co-workers
talked in Supervisor Hutton’s presence that if they got rid of the Union they would have
higher wages and more overtime. In response to questions by Company President
Schroeder, Ibarra testified he and his co-workers had talked about not wanting the Union
for four or five months prior to October 30, 2006.

8 Ibarra identified General Counsel Exhibit 5 as the petition Supervisor Hutton gave him that
morning, and, as the one signed by the four employees, whose signatures appear thereon. The
caption on the petition, provided by Supervisor Hutton to Ibarra, reads: “We don’t need the Union
at work.”
JD(ATL)—29—07
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Ibarra testified he expected to work on October 30, 2006, but was given the day
off so he could present the above described petition to the Board. Ibarra testified he
could not recall, without looking at his payroll checks, if he was paid for the day or not.
Ibarra testified he was not forced to sign the petition and acknowledged that those
who did not sign the paper still worked for the Company.
Supervisor Hutton did not testify. I credit Ibarra’s testimony except as hereinafter
explained. I find, as testified by Ibarra, that Supervisor Hutton prepared the white loose
leaf petition dated October 30, 2006, captioned, “We don’t need the Union at work.” I
also find Supervisor Hutton asked Ibarra, and others through Ibarra, to sign the petition.
It is clear the Company prepared and instigated the petition to decertify the Union and
solicited employees at work including Ibarra, to sign and support the petition. Such
actions by the Company of creating, circulating and assisting in filing the petition violate
Section 8(a)(1) of the Act and I so find. While the evidence may not be crystal clear that
Ibarra was paid wages for eight hours to take the decertification petition to the Board’s
offices for filing, it is clear he and the other members of his crew were given the day off
so Ibarra could file the petition. I am persuaded, if Ibarra had not been paid wages for
that day, he would have remembered that fact. Thus, I find Ibarra was paid a day’s wages
to take the petition to the Board for filing. The evidence establishes Ibarra was driven to
the Board’s offices by Supervisor Hutton, who waited on the street outside the Board’s
offices, until Ibarra filed the decertification petition, and was then taken back to the
Company by Supervisor Hutton. I find, as alleged, that the Company, in violation of the
Act, required Ibarra to deliver and file the petition to decertify the Union to the Board’s
offices.
I am unwilling to credit Ibarra’s testimony regarding whether Supervisor Hutton
promised him, and the others, higher wages and benefits if they signed the petition to
decertify the Union. Ibarra changed his testimony. First, he acknowledged he heard
Hutton make such a statement. Later he said it was the employees who suggested they
could have better wages and overtime. He acknowledged that his affidavit, which was
given on October 30, 2006, reflected Supervisor Hutton made such a promise but he
again stated at trial this was incorrect. I am not certain as to any motivation for Ibarra’s
flip flopping on his point but I am unwilling to rely on that portion of his otherwise
credited testimony. Accordingly, I shall dismiss the complaint allegation that Supervisor
Hutton on October 30, 2006, promised employees higher wages and benefits if they
signed a petition to decertify the Union.
Conclusions of Law
By, since on or about late October 2006, interrogating its employees about their
union activities and support for the Union; promising employees higher wages if they left
the Union; promising to pay employees to attend a meeting to be polled about their union
sentiments; promising employees continued employment if they signed a petition to
decertify the Union; threatening employees with job loss if they did not sign a petition to
decertify the Union; promising employees higher wages and benefits if they signed a
JD(ATL)—29—07
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petition to decertify the Union; drafting a petition to decertify the Union and soliciting
employees to sign the decertification petition; promising to pay an employee’s wages for
eight hours to take the decertification petition to the National Labor Relations Board; and,
by requiring an employee to deliver the petition to decertify the Union to the Board and
by driving the employee to the Board, the Company violated Section 8(a)(1) of the Act.
By since on or about late October 2006, laying off and thereafter failing and refusing to
recall employees Oscar Perez and John Spence, the Company violated Section 8(a)(3)
and (1) of the Act.
Remedy
Having found the Company has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Company having discriminatorily laid off, and
thereafter failed to recall from lay off, its employees Oscar Perez and John Spence, I
recommend they, within 14 days from the date of the Board’s Order, be offered full
reinstatement to their former jobs, or if their former jobs no longer exist to substantially
equivalent positions, without prejudice to their seniority, or any other rights or privileges
previously enjoyed, and make them whole for any loss of earnings or other benefits
suffered as a result of the discrimination against them with interest. Back pay shall be
computed in accordance with F.W. Woolworth, 90 NLRB 289 (1950), and interest shall
be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173
(1978). I also recommend the Company be ordered, within 14 days of the Board’s Order,
to remove from its files any reference to the unlawful layoff and failure to recall Oscar
Perez and John Spence, and, within 3 days thereafter, notify them in writing that it has
done and that their unlawful layoff and unlawful failure to recall from layoff will not be
used against them in any manner. I also recommend the Company be ordered, within 14
days after service by the Region, to post an appropriate “Notice to Employees” in order
that employees may be apprised of their rights under the Act and the Company’s
obligation to remedy its unfair labor practices. The “Notice to Employees” shall be
posted both in English and Spanish.
ORDER
9
The Company, R. S. Systems, Inc., it officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Interrogating its employees about their activities and support for
the Union; promising employees higher wages if they left the Union; promising to pay
employees to attend a meeting to be polled about their union sentiments; promising
employees continued employment if they signed a petition to decertify the Union;

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)—29—07
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threatening employees with job loss if they did not sign a petition to decertify the Union;
promising employees higher wages and benefits if they signed a petition to decertify the
Union; drafting a petition to decertify the Union and soliciting employees to sign the
decertification petition; promising to pay an employee’s wages for eight hours to take the
decertification petition to the National Labor Relations Board; and, requiring an
employee to deliver the petition to decertify the Union to the Board and driving the
employee to the Board.
(b) Laying off and failing and/or refusing to recall from layoff
employees because they engaged in union and/or other protected activities.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies
of the Act:
(a) Within 14 days of the Board’s Order, offer Oscar Perez and John
Spence full recall and/or reinstatement to their former jobs, or, if their former jobs no
longer exist, to substantially equivalent positions without prejudice to their seniority or
other rights or privileges previously enjoyed.
(b) Within 14 days of the Board’s Order, make Oscar Perez and John
Spence whole for any loss of earnings and other benefits resulting from their layoff and
failure to recall them from layoff, less any net interim earnings, plus interest.
(c) Within 14 days of the Board’s Order, remove from is files any
reference to Perez’s and Spence’s unlawful layoff and failure to recall them from layoff,
and, within 3 days thereafter, notify them in writing that this has been done and that their
layoff and unlawful failure to recall them will not be used against them in any manner.
(d) Within 14 days after service by the Regional Director of Region 13
of the National Labor Relations Board, post at its Romeoville, Illinois, facility copies of
the attached notice marked “Appendix.”10 Copies of the Notice, in English and Spanish,
on forms provided by the Regional Director for Region 13 after being signed by the
Company’s authorized representative shall be posted by the Company and maintained for
60 consecutive days in conspicuous places, including all places where notices are
customarily posted. Reasonable steps shall be taken 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 Company has gone out of business or closed the facilities
involved in these proceedings, the Company shall duplicate and mail, at its own expense,

10 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.”
JD(ATL)—29—07
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a copy of the Notice to Employees, to all employees employed by the Company on or at
any time since October 26, 2006.
(e) Within 21 days after service by the Region, file with the Regional
Director for Region 13 of the National Labor Relations Board sworn certification of a
responsible official on a form provided by the Region attesting to the steps that the
Company has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleged
violations of the Act not specifically found.
Dated, Washington, D.C., November 13, 2007.
_________________________
William N. Cates
Associate Chief Judge
JD(ATL)—29—07
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APPENDIX
NOTICE TO EMPLOYEES
Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law
and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interrogate our employees about their union activities and/or
support for International Union of Operating Engineers, Local 150, AFL-CIO or any
other labor organization.
WE WILL NOT promise our employees higher wages if they leave the Union.
WE WILL NOT promise to pay our employees to attend a meeting to be polled
about their union sentiments.
WE WILL NOT promise our employees continued employment if they sign a
petition to decertify the Union.
WE WILL NOT threaten our employees with job loss if they do not sign a
petition to decertify the Union.
WE WILL NOT promise our employees higher wages and benefits if they sign a
petition to decertify the Union.
WE WILL NOT draft a petition to decertify the Union and solicit our employees
to sign the decertification petition.
WE WILL NOT promise to pay an employee’s wages to take a decertification
petition to the National Labor Relations Board.
WE WILL NOT require an employee of ours to deliver a petition to decertify the
Union to the National Labor Relations Board nor will we drive employees to the National
Labor Relations Board for that purpose.
JD(ATL)—29—07
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WE WILL NOT layoff and/or fail and refuse to recall from layoff employees in
order to discourage them and/or others from engaging in union or concerted protected
activities.

WE WILL NOT in any like or related manner interfere with, restrain or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer Oscar Perez and John
Spence recall to their former jobs, or if their former jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or other rights and privileges
previously enjoyed.
WE WILL make Oscar Perez and John Spence whole for any loss of earnings
and other benefits resulting from their layoff, less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove from our files any
reference to the layoff and/or failure to recall from layoff Oscar Perez and John Spence,
and WE WILL, within 3 days thereafter, notify them in writing that this has been done
and that their layoff and our failure to be recall them from layoff will not be used against
them in any manner.
R. S. SERVICE SYSTEMS, INC.
Employer
Dated:______________________ By:______________________________________
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rightsunder the
Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
200 West Adams Street - Suite 800, Chicago, IL 60606-5208
(312) 886-3036, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM
THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 886-3036