Schuff Steel

National Labor Relations Board - Administrative Judge Opinions

Sep 18, 2018

20-CA-204378 (N.L.R.B. Sep. 18, 2018)

JD(SF)–29–18
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SCHUFF STEEL
and Case 20–CA–204378
DEREK DIXON, an Individual
Matthew C. Petersen, Esq., for the General Counsel.
Patrick R. Scully, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case was tried in San Francisco,
California, from April 23 to 24, 2018. Derek Dixon (Dixon), an individual, filed the original
charge on August 14, 2017,1 and the General Counsel issued the complaint and notice of hearing
on January 31, 2018. Schuff Steel (Respondent) filed a timely answer to the complaint.
The General Counsel alleges at complaint paragraph 5 that on or about June 3, Dixon
engaged in concerted activity with other employees for the purposes of mutual aid and protection
by challenging Respondent’s discharge of another employee. Furthermore, complaint paragraph
6 alleges that on or about June 12, Respondent’s general foreman, Marcel Rodriguez
(Rodriguez), laid off Dixon. The General Counsel alleges that Respondent laid off Dixon
because he challenged Respondent’s discharge of another employee, and to discourage
employees from engaging in that or other concerted activity. As a result, the General Counsel
alleges that Respondent has interfered with, restrained, and coerced employees in the exercise of
their rights under Section 7 of the Act in violation of Section 8(a)(1)of the Act. Respondent
argues that it laid off Dixon pursuant to the collective-bargaining agreement and without regard
to any protected concerted activity on his part.

1 All dates hereinafter are 2017 unless otherwise specified.
JD(SF)–29–18
2
On the entire record,2 including my observation of the demeanor of witnesses,3 and after
considering the briefs filed by the General Counsel and Respondent,4 I make the following
FINDINGS OF FACT5
I. JURISDICTION
Respondent, a Delaware corporation with various places of business located within the
State of California including an office and facility located at 2324 Navy Drive, Stockton, 10
California, is a fabricator and erector of structural steel. During the calendar year ending
December 31, 2017, Respondent sold and shipped from its California facilities goods valued in
excess of $50,000 directly to customers located outside the State of California. Respondent
admits, and I find, that Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. 15
II. THE FACEBOOK PROJECT
Sometime prior to May 2017, Facebook contracted with Respondent to perform steel
erection and fabrication work, to be completed in about 55 days, on the construction of its new 20
building in Menlo Park, California (the Facebook project) (GC Exh. 4). The Facebook project
lasted from April to early July. Respondent hired over 200 welders during the weekdays, and
brought on another 40 to 50 welders from other jobs on the weekends, to fast-track completion of
the Facebook project. On the Facebook project, Respondent divided the employees it hired into
gangs, or teams, specific to work functions such as the raising gang, the bolt up gang, safety 25
gang, plumb up gang, and others. Respondent hired employees through the International
Association of Ironworkers (Union) Local 377 hiring hall pursuant to the relevant collective-
bargaining agreement (CBA) between the Western Steel Council and the Union (R. Exh. 10).5
Through the CBA, Respondent retained the ability to determine whether an employee’s work
functions were sufficient for a particular project. If the employee is not suitable for a particular 30

2 The transcripts and exhibits in this case generally are accurate, but I hereby make the
following corrections to the record: Transcript (Tr. 133), Line (L. 22), Tr. 140, L. 17, Tr. 330,
L. 25; Tr. 348, L. 13, 19 and 20: the speaker is Mr. Peterson, not Mr. Scully; Tr. 233, L. 7:
“La Joya” should be “La Jolla”; throughout the transcript the name “Chinn” is misspelled as
“Chin” and “Dickson” should be “Dixon.”
3 Although I have included several citations to the evidentiary record in this decision to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are not
based solely on those citations, but rather are based on my review of the entire record for this
case.
4 Other abbreviations used in this decision are as follows: “GC Exh.” for the General
Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “GC Br.” for the General Counsel’s brief;
and “R. Br.” for Respondent’s brief. In addition, on June 26, 2018, Respondent filed a motion to
strike section II of the General Counsel’s posthearing brief which referenced hearsay testimony.
The General Counsel filed an opposition on July 9, 2018. After reviewing both pleadings, I deny
Respondent’s motion to strike but instead rely upon my credibility determinations when
determining the outcome of this matter.
5 The term period for the CBA was from July 1, 2014 to June 30, 2017.
JD(SF)–29–18
3
project, Respondent generally lays off employees rather than terminating the employee for any
specific wrongdoing. As area superintendent, Randall Chinn (Chinn) explained, Respondent lays
off employees rather than noting the true reason for removal so the employee can quickly move
onto another project (Tr. 259). A layoff is not a disciplinary action (Tr. 260). Respondent
presented numerous layoff notices for the month of June which indicated layoff due to lack of 5
work despite the true reason for the layoff which was the employee taking extended breaks.
Through the Union Local 377 hiring hall, on May 23, Respondent hired Dixon for the
Facebook project as a production welder (R. Exh. 6).6 Dixon has been a journeyman production
welder since 1998, and currently is a member of Union Local 433 located in Los Angeles, 10
California. Before being hired for the Facebook project, Dixon spoke with Rodriguez about his
interest in being employed by Respondent for that project, and Rodriguez ultimately hired
Dixon.7 Dixon worked on the production welding gang which consisted of approximately 12
employees who are journeymen production welders and apprentices.8 The number of employees
on the other gangs varied. 15
Once Respondent hired Dixon, General Foreman GW Swartz (Swartz) became his
supervisor (Exh. 6).9 Dixon worked 12-hour shifts, Monday to Friday, and 8- to 10-hour shifts
on Saturdays during the Facebook project. During his shift, Dixon received three breaks:
morning, lunch, and afternoon. These breaks were established during the Facebook project by 20
the foremen, general foremen, and superintendent. The foremen had discretion in the starting
and stopping of break times (Tr. 320). Dixon’s gang would take their breaks together at
generally the same time each day but the employees did not gather together in one common area
for their breaks or lunches. Dixon testified that he knew to take his break by looking at his watch
or when the foreman or apprentice would shut down the power supply to their tools. Dixon 25
testified that employees knew when their breaks were over by looking at their watches or when
the power supply was turned back on. Dixon also testified that there were times that he worked
past a break start time because he was involved in his work, and the power supply was not turned
off. In those instances, Dixon would inform the foreman or apprentice that he needed to take his
break and would do so. Dixon claimed that he missed his break a couple times during his 30
employment with Respondent, and he observed other employees take their breaks late as well.
The morning break was 15 minutes and afternoon breaks were 10 minutes each while the
lunch break was 30 minutes. During the afternoon breaks, employees would take their breaks in
areas close to their work area while during the morning and lunch breaks employees could leave 35
their work area locations.10 Welder Mario Marcial, Jr. (Marcial), whose foreman was Alex

6 At least 10 times in Dixon’s career, Respondent hired him to work on a variety of
construction projects.
7 Respondent admits Rodriguez is a supervisor or agent within the meaning of Sec. 2(11) or
(13) of the Act during all relevant times. Rodriguez did not testify.
8 The apprentices assist the journeymen in performing the latters’ assigned tasks.
9 Respondent admits Swartz was a supervisor or agent within the meaning of Sec. 2(11) or
(13) of the Act during all relevant times.
10 Sec. 6, B-2 of the CBA covers rest periods and specifies that rest periods may take place as
designated by the employer and limited to the employees’ immediate work areas or work point
(term used in the CBA). In addition, Respondent permitted employees to take 15-minute
morning breaks despite the CBA indicating that the morning break is 10 minutes. In addition, to
JD(SF)–29–18
4
Reyes (Reyes) and whose supervisor was Rodriguez and Swartz, testified similarly regarding
how his breaks functioned during the Facebook project although he testified that morning breaks
were 20 minutes in length. Marcial did not work on the same crew as Dixon.
Welding Foreman Chuck Kelly (Kelly) gave the employees in Dixon’s welding gang 5
their daily tasks during their morning meetings.11 During these morning meetings, which lasted
15 to 20 minutes, Kelly generally discussed safety issues before informing the employees of their
assigned tasks for the day. Kelly received his gang’s assignments every morning via meetings
held with Swartz (Tr. 283). Swartz testified that he met daily with employees in large groups as
well and would discuss work procedures such as breaks (Tr. 323). Respondent frequently, if not 10
daily, shared information regarding breaks during the morning meetings (Tr. 320–-321). Also on
Tuesday mornings, various gangs, including the production welding gang, would attend an all-
hands safety meeting where Respondent and other onsite employers would discuss general safety
issues, the status of the project, and other topics pertinent to all employees.
15
Dixon testified that during the workday Kelly would occasionally check on the welders to
see if they needed anything; Dixon did not observe Kelly performing welding tasks. Kelly
moved around the worksite on a golf cart, often times with Rodriguez, who was Kelly’s
supervisor. On a daily basis, Dixon interacted with Kelly. Dixon did not interact with Swartz or
Rodriguez while he was on the Facebook project. Swartz explained that he spent half of the day 20
in his onsite office and the other half on the site with the employees.
III. THE ALLEGED PROTECTED CONCERTED ACTIVITY
One Saturday in June, approximately June 3, Dixon arrived at the Facebook project site 25
and attended the morning meeting. Kelly did not attend this meeting. Thereafter, Dixon
proceeded to his assigned welding location. On his way to his welding location, Dixon
approached the restroom, and as he did so, he noticed an unnamed apprentice appearing to leave
the premises as he surmised since he had his tools with him. Dixon asked the apprentice where
he was going, and the apprentice responded (Tr. 67).12 Based upon the apprentice’s response that 30
he was asked to leave the worksite, Dixon asked the apprentice to wait while he went to speak to
Kelly.13

perform his various tasks, Dixon’s work area could be near the variety of equipment he used
such as an aerial lift, float, and beam chair to weld in the higher portions of the structure. He
also welded on the lower portions of the structure.
11 Respondent denied Kelly’s supervisory and agent status.
12 Dixon could not recall the identity of the apprentice to whom he spoke. Nevertheless, the
General Counsel sought to introduce what the apprentice said to Dixon. Respondent objected on
several basis including due process and hearsay grounds. What the apprentice actually said to
Dixon is not relevant; what is relevant is that Dixon assumed that the apprentice was leaving the
worksite after being asked to do so, which then led to Dixon’s subsequent interaction with Kelly.
As for Respondent’s due process argument, Respondent is aware of the allegations in this
complaint.
13 The record lacks any evidence of what actually happened to the apprentice, which makes
sense as he could not be identified by Dixon. For purposes of the facts presented, I credit
Dixon’s testimony that the apprentice’s working conditions were altered which prompted him to
speak on behalf of the apprentice to Kelly and Rodriguez.
JD(SF)–29–18
5
As Dixon went to find Kelly, Dixon saw Kelly coming toward him. Dixon asked Kelly
what was happening with the apprentice and why was he going home (Tr. 75). Kelly responded
to Dixon.14 Dixon then told Kelly that it was their job as journeymen to teach an apprentice how
to perform his job, and that maybe the apprentice could be moved to another gang. Kelly again 5
responded to Dixon. Dixon replied that he planned to talk with Rodriguez to place the
apprentice in another gang.
Dixon testified that Wright observed and listened to Dixon’s conversation with Kelly.15
After Dixon’s conversation with Kelly concluded, Wright and Dixon discussed the interaction 10
between Kelly and Dixon. Within 5 minutes of Dixon’s conversation with Kelly ending, Dixon
saw Rodriguez riding by on a golf cart. Dixon flagged down Rodriguez. Dixon told Rodriguez
that Kelly was trying to get rid of an apprentice in their group, and told Rodriguez that Kelly told
the apprentice to go home as he was “not worth shit” (Tr. 78). Dixon told Rodriguez that he has
been on other jobs where if an apprentice is not performing his work properly he is moved to 15
another gang and not terminated. Also within earshot of Dixon’s conversation with Rodriguez
was Wright and Coleman.16 Dixon asked Rodriguez not to send the apprentice home but to
consider putting him in another gang. Rodriguez responded that he knew the apprentice, and
said, “I’ll handle it” (Tr. 78). Rodriguez went back into the golf cart, and drove 20 feet away to
Kelly. Dixon testified that he next saw Rodriguez “fussing” at Kelly but could not hear what 20
was said (Tr. 79).17 Dixon then went back to his work area, and although he saw the apprentice

14 Dixon testified that Kelly responded that the apprentice was “not worth shit” and could not
do his job. Furthermore, Dixon testified that Kelly stated if he did not like how the apprentice
was being treated he could leave too. Dixon responded, “I’m not going anywhere” (Tr. 75). At
the hearing, the General Counsel claimed that Kelly’s responses to Dixon during this
conversation were not hearsay as the testimony was not offered for the truth of the matter
asserted. At the time, I overruled Respondent’s hearsay objection but stated that I would
reconsider my ruling in the decision after I reviewed the entire record. At this time, I sustain
Respondent’s objection as Dixon’s testimony is hearsay. In RJR Communications, Inc., 248
NLRB 920, 921 (1980), the Board noted that courts have long recognized that hearsay evidence
is admissible before administrative agencies, if rationally probative in force and if corroborated
by something more than the slightest amount of other evidence. Here, Dixon’s testimony
regarding this conversation is uncorroborated, cannot be proven by any other means, is not
inherently reliable, and accordingly is entitled to little weight. W. D. Manor Mechanical
Contractors, Inc., 357 NLRB 1526 (2011) (uncorroborated hearsay entitled to “little weight”).
15 The General Counsel issued a subpoena ad testificandum to Wright, but he did not appear
at the hearing. The General Counsel did not seek enforcement of the subpoena. Again, Dixon’s
testimony as to Wright’s response during their conversation is hearsay, and will not be
considered.
16 Coleman did not testify.
17 Marcial testified that one Friday, approximately June 9, Rodriguez, who had never spoken
to him except when he was hired and on his first day of work, approached Marcial and another
employee. Rodriguez started talking about an incident that day involving Dixon, the apprentice
and the foreman (Tr. 192). Marcial testified that Rodriguez told them that the foreman did not
think the apprentice was performing his job well, wanting to lay him off and Dixon did not think
laying off the apprentice was appropriate so Dixon spoke up about the issue. Rodriguez then
made comments to the effect of who does Dixon think he is and why does he care. Rodriguez
JD(SF)–29–18
6
standing in another area he did not go to speak with him again because Rodriguez said he would
handle it. Dixon learned that the apprentice continued to work on the Facebook project.18
IV. RESPONDENT LAYS OFF DIXON
5
On Monday, June 12, between 2:45 to 3:00 p.m., Rodriguez waved at Dixon to come
down from the aerial lift in which he was working.19 Rodriguez handed Dixon two checks.
Again, Wright was present for this interaction between Dixon and Rodriguez. Rodriguez told
Dixon he was laying him off due to taking long or extended breaks, and said the decision was out
of his hands. Dixon denied taking long breaks. Rodriguez told Dixon that Wright was being laid 10
off for the same reason as well as four other employees in another section of the building.
Rodriguez told Dixon, “They’re cracking down on that [long breaks]” (Tr. 82) (R. Exh. 17).20
The paperwork provided to Dixon only indicates that he was permanently laid off by Swartz at
the end of his shift due to lack of work (R. Exh. 6). As Dixon gathered his tools, he saw Kelly,
and asked him if he knew what was going on. Kelly responded.21 15
Swartz, who made the decision to lay off Dixon, testified that only another general
foreman (not Rodriguez), the superintendent, and he made the decision to lay off employees (Tr.
284). Swartz testified that employees were laid off every day on the Facebook project due to

also commented that Dixon felt it was a racial issue since the apprentice is African-American,
and Rodriguez said that the foreman is not racist at all. Marcial further testified that Rodriguez
said he had been told about Dixon, that he had sued others over racial issues, and that he was
“not going to have this bullshit on the job site” (Tr. 192). Marcial testified that Rodriguez said
the foreman (Kelly) was “scared” to tell Dixon about taking extended breaks because Dixon
would say that the issue is his race (Tr. 194). Marcial testified that Rodriguez stated that
Respondent would remove Dixon from the worksite due to his extended breaks, and Rodriguez
told the foreman to document Dixon’s breaks (Tr. 195). According to Marcial, Rodriguez told
him that Dixon told the foreman that the apprentice was not being treated right, and that the
apprentice’s race was why he was being treated in such a manner (Tr. 194). I decline to credit
Marcial’s testimony as it seems improbable that a supervisor, who does not even know Marcial,
would confess his plans to remove Dixon from the workplace. In addition, the timing of events
does not comport with Marcial’s testimony. The incident between Dixon and Kelly occurred 1
week prior, not 1 week later as indicated by Marcial’s testimony. Moreover, based on Dixon’s
testimony, he never told Kelly that he thought the apprentice’s race was a factor. These are a
couple but not all of the reasons I decline to credit Marcial’s testimony. My further discussion
regarding Marcial’s testimony is found in the general credibility section of this decision.
18 Respondent requests that I make an adverse inference that Dixon’s conversations with
Kelly and Rodriguez did not occur as Wright and Coleman failed to testify. I decline to do so as
an adverse inference is unnecessary based on my credibility assessment of Dixon.
19 During the hearing, Dixon testified that his lay off occurred on June 22 or 23 which is
clearly erroneous based on the documentary evidence.
20 Swartz also supervised Wright, who was hired on June 3 as a Union journeyman welder.
Swartz laid off Wright after receiving complaints from Kelly about his extended breaks and not
being at his worksite (Tr. 303–304). However, Swartz admitted he never observed Wright taking
extended breaks.
21 Again, Dixon’s testimony regarding Kelly’s response is hearsay, and his testimony is given
little weight.
JD(SF)–29–18
7
lack of work in certain areas and lack of production from employees which included taking
extended breaks. According to Swartz, lack of production was common on the Facebook project
as it was a large project with many employees. In June, Respondent laid off approximately 20
employees due to extended breaks.22 Swartz explained, similarly to Chinn, that employees are
laid off rather than terminated for their actual infraction to ensure that they can go on another job 5
right away (Tr. 306).
Swartz testified that he had heard complaints from Kelly and Flores about Dixon’s lack
of production due to afternoon breaks away from his work area which results in extended
breaks.23 First, Kelly reported to Swartz 1 week prior to June 12 that Dixon was not at his work 10
area during the breaks as required (Tr. 305, 341). Kelly also reported that Dixon and Wright
were taking afternoon breaks not near their work areas, and they were not being responsive to
instructions to end their breaks. Next, Flores reported seeing Dixon and Wright taking a break in
his work area during a nonbreak period despite working in another area for a different gang (Tr.
305, 343). The day prior to his layoff, Kelly complained again about Dixon taking his break 15
away from his work area. Thereafter, Swartz specifically sought to observe Dixon’s break
period which he observed once where Dixon again took an extended break (Tr. 302). Swartz then
decided to lay off Dixon; Swartz did not personally warn Dixon for taking extended breaks
although he testified that Kelly had told Dixon and Wright to end their breaks.24 Swartz denied
any knowledge of Dixon complaining about an apprentice being removed from the job (Tr. 301). 20
Nor was Swartz aware of any other workplace complaints concerning Dixon. Swartz also denied
laying off Dixon for anything said to him by Rodriguez. Swartz stated that he learned about
Dixon’s allegations regarding the apprentice 1 week prior to the hearing in this matter.

After being laid off, Dixon contacted the Union in San Francisco, California. Dixon 25
complained that his layoff was unlawful, but the Union did not file a grievance on his behalf.
Dixon also did not file a grievance against Respondent (Tr. 103–104). Swartz spoke with the
Union’s business agent regarding Dixon, and explained that he was laid off for taking extended
breaks and being nonproductive after being warned by Kelly (Tr. 353).
30
Marcial testified that he told Dixon about his conversation with Rodriguez the day after
Dixon was laid off. Marcial also testified that a superintendent, likely Swartz, warned the

22 Respondent provided many examples of other journeyman welders who were laid off for
taking extended breaks in May and June during the Facebook project. The layoff notices did not
indicate that the layoff was for extended breaks but instead noted lack of work as the reason for
the layoff which is the reason provided on Dixon’s notice. For example, John Hernandez, a
journeyman welder, was laid off on June 8 for taking extended breaks after being warned by
Swartz directly who saw him (R. Exh. 11, Tr. 290). Respondent provided examples of other
employees who were laid off by Swartz for taking extended breaks which he personally observed
or relied upon reports from foremen (R. Exhs. 12, 13, 14, 15, 16, and 17). Swartz stated that he
would typically warn employees about their extended breaks via their foremen (Tr. 325).
23 Flores did not testify.
24 In contrast, Dixon testified that he never was warned or notified about taking extended
breaks when on the Facebook project. As discussed further in the general credibility section of
this decision, I do not credit Dixon’s testimony regarding breaks but instead rely on Swartz’s
testimony.
JD(SF)–29–18
8
employees at a Tuesday morning meeting that they all needed to watch their breaks as they laid
off two employees the day prior for taking extended breaks.
V. GENERAL CREDIBILITY CONCLUSIONS
5
In addition to my credibility assessments already explained above, I will set forth my
general credibility conclusions of the witnesses for each party. This decision hinges upon my
credibility determinations regarding various conversations. Credibility determinations may rely
on various factors, including the context of witness’ testimony, the witness’ testimonial
demeanor, the weight of the respective evidence, established or admitted facts, inherent 10
probabilities and reasonable inferences that may be drawn from the record as a whole. Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001).
Additionally, it is well established that the trier of fact may believe some, but not all, of a
witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950).
15
The General Counsel and Respondent each presented two witnesses for testimony: Dixon
and Marcial for the General Counsel, and Chinn and Swartz for Respondent. Respondent’s
witnesses provided reliable, comprehensive, and concrete testimony regarding the events at issue
in this matter. The demeanor of both Swartz and Chinn remained calm, patient, and confident.
Swartz, who made the decision to lay off Dixon, provided extremely detailed testimony as to 20
several employees who were laid off during June, including Dixon, and why he made his
decisions. In addition, the documentary evidence corroborated his testimony regarding the
layoffs of the employees he testified about. He recalled who oversaw the various gangs during
the relatively brief but large construction project. On cross-examination, Swartz did not waiver
in his testimony, remaining steadfast. Overall, Swartz provided impressive testimony which 25
makes him more believable than either of the General Counsel’s witnesses. Thus, I credit his
testimony when contradicted by conflicting testimony. I also credit his testimony that he was
unaware of any incident regarding Dixon speaking on behalf of an apprentice to Kelly or
Rodriguez. When responding to this question about whether he had heard of an incident
involving Dixon and an apprentice, Swartz repeatedly denied knowledge of the incident, and 30
admitted he had only learned of the issue the week prior to the hearing. Swartz testified matter-
of-factly that he laid off Dixon due to his numerous breaks away from his work area. Chinn also
testified persuasively although he had no involvement or knowledge of the decision to lay off
Dixon. Based upon my observations of Chinn and Swartz’ demeanor as well as the entire record,
I can only conclude that they provided credible and reliable testimony, and were far more 35
believable than Dixon and Marcial as to the complaint allegations.
In contrast, I found Dixon’s overall testimony to be self-serving and implausible.
I accept Dixon’s testimony that he approached Kelly to discuss the tenure of the apprentice, and
also accept that he spoke to Rodriguez after speaking with Kelly. As far as his conversation with 40
Kelly, I cannot accept his testimony as to the truthfulness of their conversation as it was
uncorroborated hearsay. But even if I were to accept as truth his testimony regarding Kelly
ordering him to leave the workplace if he did not like how Kelly was treating the apprentice,
I still cannot credit Dixon’s version as it seems highly unlikely that Dixon would not have
reported Kelly’s comment to Rodriguez. When subsequently speaking to Rodriguez, Dixon only 45
spoke on behalf of the apprentice, not himself. Moreover, after his conversations with Kelly and
Rodriguez, Dixon acted reasonably when he did not speak again with the apprentice as he
thought the matter would be resolved by Rodriguez. Accepting such testimony undermines
JD(SF)–29–18
9
Dixon’s belief that Respondent laid him off for speaking on behalf of the apprentice. After a
seemingly dramatic confrontation with Kelly, the whole issue regarding the apprentice seemed to
have been handled and closed. Thus, it makes little sense to believe that thereafter Respondent
laid off Dixon for questioning how the apprentice’s work performance was being addressed.
5
Nor can I credit Dixon’s testimony regarding breaks. He testified that Respondent never
spoke about extended breaks but the credited testimony of Swartz directly contradicts Dixon.
Swartz testified that breaks were discussed almost every day with the employees. Swartz also
admitted he did not personally warn Dixon not to take extended breaks and instead relied upon
reports from the foremen. Accepting Swartz’ testimony due to his candor, Dixon was told to get 10
back to work after taking an extended break by Kelly as well as another foreman. In sum,
Dixon’s testimony that he was never told about taking extended breaks when taking his
afternoon break away from his worksite is simply not believable.
The General Counsel’s only other witness Marcial also did not testify credibly. In fact, 15
Marcial’s testimony was simply too good to be true, and appeared to be rehearsed. Marcial
testified that Rodriguez randomly came up to him and a coworker and began complaining about
Dixon’s interference regarding the apprentice. Marcial’s testimony makes little sense in light of
the credited testimony of Dixon who explained that Rodriguez handled the incident with Kelly
and the apprentice. Dixon did not testify that Rodriguez displayed any animosity or irritation 20
towards his actions of standing up for the apprentice. Marcial’s testimony defies belief as it
seems implausible that the general foreman would confess to two employees he had never
spoken to about laying off Dixon for support of the apprentice and also explaining how he
planned to cover up his misdeeds. Marcial’s testimony was simply not reliable. In addition,
Marcial admitted that his father had been friends with Dixon for many years, and despite Marcial 25
himself not being friendly with Dixon, he met with Dixon the night before the hearing.
However, Marcial testified that they spoke about work, and not his testimony. Moreover,
although Marcial had not reviewed his affidavit prior to the hearing, the morning of the hearing,
when he reviewed it in the presence of Dixon, he crossed out one significant statement: that
Dixon had been warned for taking extended breaks. Only one other minor edit was made to this 30
affidavit.25 All of these facts lead me to the conclusion that I simply cannot rely upon Marcial’s
testimony.
The General Counsel argues that I should take an adverse inference against Respondent for
failing to call Rodriguez, Kelly, and Flores. Similarly, Respondent requests that an adverse 35
inference be taken against Dixon’s version of events regarding his conversation with the
apprentice and Kelly because the General Counsel did not call Kelly or welders Robert Wright
(Wright) and Larry Coleman (Coleman) to testify. I decline to take any adverse inferences in
this matter but instead focus on the credibility of the witnesses who were called to testify. An
adverse inference may be drawn from the failure of an employer to call a current manager, 40
supervisor, or agent, but current employees cannot be considered predisposed to testify in one

25 Respondent argues that I should strike Marcial’s testimony or impose sanctions due to his
action of changing a significant statement in his August 2 affidavit the first day of the hearing.
Despite many phone calls and emails from the General Counsel during the investigation, Marcial
admitted to failing to return these messages and therefore, only reviewed and signed his affidavit
the first of the hearing. Despite my general skepticism of Marcial’s testimony, I decline to strike
it testimony or impose sanctions because he had not reviewed his statement until that day.
JD(SF)–29–18
10
manner or another, and are equally available to both parties. See Torbitt & Castleman, Inc., 320
NLRB 907, 910 fn. 6 (1996), enfd. 123 F.3d 899, 907 (6th Cir. 1997). In addition, the General
Counsel failed to prove Kelly, who is no longer employed by Respondent, was a supervisor or
agent during the time period at issue. Likewise, the General Counsel failed to prove Flores, who
is employed by Respondent, was a supervisor or agent during the time period at issue. Thus an 5
adverse inference against Respondent for failing to call Kelly and Flores is not warranted. In
addition, I decline to take an adverse inference against Respondent for failing to call Rodriguez
who is employed by Respondent. The credibility of Rodriguez only concerns two conversations.
As for Dixon’s conversation with Rodriguez about the apprentice, I have credited Dixon’s
testimony. As for Rodriguez’ colloquy with Marcial concerning Dixon and the apprentice, I 10
decline to take an adverse inference against Respondent as I do not rely on Marcial’s uncredited
testimony. Thus, Rodriguez’ testimony is unnecessary.
ANALYSIS AND DISCUSSION
15
A. Deferral is not appropriate
Before considering the merits of this complaint’s allegations, I must first determine
whether this matter should be deferred to the parties’ grievance-arbitration provision set forth in
its CBA as argued by Respondent at the hearing.26 St. Francis Regional Medical Center, 363 20
NLRB No. 99, slip op. at 17 (2015); see also Collyer Insulated Wire, 192 NLRB 837 (1971)
(describing the Board’s rationale for prearbitration deferral). The burden of proof lies with
Respondent, the moving party. King Soopers, 364 NLRB No. 93, slip op. at 22–23 (2016), enfd.
in relevant part 859 F.3d 23, 30 (D.C. Cir. 2017).
25
Generally, Section 8(a)(3) or (1) allegations claiming employer animus toward
employee’s exercise of protected rights is “not eminently well suited to arbitration.” St. Francis
Regional Medical Center, supra, slip op. at 3 (citing Collyer Insulated Wire, supra). However,
the Board has deferred these types of allegations to arbitration, and instead relies on a
determination of whether the facts show “a sufficient degree of hostility, either on the facts of the 30
case at bar alone or in the light of prior unlawful conduct of which the immediate dispute may
fairly be said to be simply a continuation.” United Aircraft Corp., 204 NLRB 879, 879 (1972).
Here, Dixon credibly testified that the Union refused to file a grievance on his behalf when he
complained that his layoff was unlawful. In addition, rather than permitting arbitration, the CBA
calls for a board of adjustment which consists of representatives appointed by the Union and 35
Employer. During the hearing, Respondent’s counsel asserted that Respondent would be willing
to waive any time limits for the filing of a grievance under the procedures of the CBA. Even
accepting such an assertion, the record is devoid of any evidence regarding the Union’s position.
Thus, this matter is not appropriate for deferral.
40
B. Kelly is not a supervisor or agent as defined by Section 2(11) and 2(13) of the Act
Respondent denied the General Counsel’s allegation that Kelly was a supervisor or agent
as defined by Section 2(11) and (13) of the Act. Section 2(11) of the Act provides that a

26 Respondent failed to present any argument in its posthearing brief regarding deferral. It is
unclear whether Respondent has now abandoned its claim but since it was raised in its answer as
well as opening statement during the hearing, I will address this issue.
JD(SF)–29–18
11
supervisor is one who possesses, “authority, in the interest of the employer, to hire, transfer,
suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or to
responsibly direct them, or to adjust their grievances, or effectively recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.” Under Board and Supreme Court 5
precedent, in order to be a statutory supervisor, an individual must have the authority to
effectuate or effectively recommend at least one of the supervisory indicia enumerated in Section
2(11) of the Act, using independent judgment in the interest of the employer. Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006) (citing NLRB v. Kentucky Community Care, 532
U.S. 706 (2001)). It is well settled that the party asserting supervisory status bears the burden of 10
proof on the issue by a preponderance of the evidence. Id. at 694.
The General Counsel has fallen short in its burden of proof. The credited evidence
demonstrates that Foreman Kelly received daily assignments from General Foreman Swartz;
Kelly then distributed these assignments to the employees. The only responsibility it appears 15
that Kelly had was to adjust the break schedule as needed each day. The evidence does not show
that Kelly had any other responsibility or even input into decisions to hire, terminate, or
discipline employees. Kelly merely reported to Swartz when employees’ production was lacking
such as when they took extended breaks. See Cablevision Systems Co., 251 NLRB 1319, 1323
(1980) (foremen not supervisors where they merely pass out assignments provided by office 20
personnel, provide routine directions, and exercise no independent judgment). Kelly did not
issue warnings that were disciplinary in nature but rather the foremen appear to have enforced
break rules. Moreover, the evidence fails to show that Kelly had any role in the layoff of
employees including Dixon. Thus, Kelly is not a supervisor under the Act.
25
The Board applies common-law agency principles when examining whether an employee
is an agent of an employer as defined by Section 2(13) of the Act. The question to be asked is
whether under all the circumstances, the employees “would reasonably believe that the employee
in question [the alleged agent] was reflecting company policy and speaking and acting for
management.” Waterbed World, 286 NLRB 425, 426–427 (1987) (citing Einhorn Enterprises, 30
279 NLRB 576 (1986), citing Community Cash Stores, 238 NLRB 265 (1978)). The party who
has the burden to prove agency must establish an agency relationship with regard to the specific
conduct alleged to be unlawful. Pan-Oston Co., 336 NLRB 305 (2001). Again, the record
contains no evidence that Kelly acted as an agent of Respondent. Clearly Dixon did not believe
Kelly acted on behalf of management as he sought to override Kelly’s alleged decision to 35
remove the apprentice. Moreover, assuming for the sake of argument that Kelly told Dixon to
leave the workplace as well if he did not like how the apprentice was being treated, Dixon
certainly did not believe Kelly had such authority as he did not even report the comment to
Rodriguez. Accordingly, I cannot conclude that Kelly acted at any time as an agent of
Respondent, and no statements or conduct may be imputed to Respondent. Thus, the General 40
Counsel failed to prove Kelly was a supervisor or agent as defined by the Act during the relevant
time period.
C. The General Counsel Failed to Prove that Respondent Violated Section 8(a)(1) When it
Made the Decision to Lay Off Dixon45
The General Counsel alleges Respondent via Rodriguez laid off Dixon because he
engaged in protected concerted activity when he challenged the termination of an apprentice.
JD(SF)–29–18
12
Respondent denies the allegation stating Dixon had not engaged in protected concerted activity,
and even if he had, he was terminated for his extended breaks.
Based on the credited facts, it should be noted that the General Counsel’s complaint
allegations are not supported. First, the record contains no evidence that the apprentice was 5
discharged by Kelly at any time. Second, the record is clear that Rodriguez did not lay off Dixon
but instead only delivered the layoff notice; Swartz laid off Dixon which is apparent from the
layoff notice as well as Swartz’ testimony.
To prove an adverse action violates Section 8(a)(1) of the Act, the General Counsel has 10
the initial burden of establishing that an employee’s protected activity was a motivating factor in
an employer’s decision to take adverse action against an employee.27 Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). To prove such a motivating
factor, the General Counsel must show protected activity, employer knowledge of that activity, 15
and animus on the part of the employer. See Allstate Power Vac, Inc., 357 NLRB 344, 346
(2011) (citing Willamette Industries, 341 NLRB 560, 562 (2004)); see also Austal USA, LLC,
356 NLRB 363, 363 (2010). The demonstration of a causal nexus is not an element of the
General Counsel’s initial burden. See, e.g., Amalgamated Transit Union Local 689, 363 NLRB
No. 43, slip op. at 1 fn. 1 (2015) (quoting Libertyville Toyota, 360 NLRB 1298, 1301 fn. 10 20
(2014), enfd. 801 F.3d 767 (7th Cir. 2015)) (internal quotation marks omitted); Mesker Door,
Inc., 357 NLRB 591, 592 fn. 5 (2011) (“[T]he Wright Line standard does not require the General
Counsel to show … some additional, undefined ‘nexus’ between the employee’s protected
activity and the adverse action.”). Instead, the inquiry is whether the employer took action
because of its animus which may be inferred from direct or circumstantial evidence with 25
circumstantial evidence of motive as most likely to be shown. Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) (citations omitted), enfg. 312 NLRB 155 (1993).
Once the General Counsel proves its burden, the burden of persuasion “shift[s] to the
employer to demonstrate that the same action would have been take even in the absence of the 30
protected conduct.” Allstate Power Vac, supra at 346 (quoting Donaldson Bros. Ready Mix, Inc.,
341 NLRB 958, 961 (2004)). “An employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected activity.” Consolidated Bus Transit, 350 NLRB
1064, 1066 (2007) (quoting W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review 35
denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996)). Moreover, the
employer’s burden is substantial if the General Counsel makes a strong showing of
discriminatory motivation. See, e.g., Bally’s Park Place, Inc., 355 NLRB 1319, 1321 (2010)
(reversing judge and finding violation because the judge “did not consider the strength of the

27 Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the
Act].” Sec. 7 provides that “[e]mployees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively though representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection.”
JD(SF)–29–18
13
General Counsel’s case in finding that the Respondent met its Wright Line rebuttal burden”),
enfd. 646 F.3d 929 (D.C. Cir. 2011).
Prior to applying this burden-shifting framework to Dixon’s layoff, I must first decide
whether Dixon engaged in protected concerted activity when he spoke to Kelly and Rodriguez 5
about the apprentice. To be protected under Section 7 of the Act, employee conduct must be
both concerted and engaged in for the purpose of mutual aid or protection. Concerted activity
includes activity that is engaged in with or on the authority of other employees, but also
activity where individual employees seek to initiate or to induce or to prepare for group action
as well as individual employees bringing truly group complaints to the attention of 10
management. See NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984); Meyers
Industries, 268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755
F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers Industries,
281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988). Concerted activity does not include activities 15
of a purely personal nature that do not envision group action. See United Association of
Journeymen and Apprentices of the Pipefitting Industry of the United States and Canada,
Local Union 412, 328 NLRB 1079 (1999); Hospital of St. Raphael, 273 NLRB 46, 47 (1984).
The standard is objective, not subjective. Dries & Krump Mfg. Co. v. NLRB, 544 F.2d 320,
328 fn. 10 (7th Cir. 1976) (“what is crucial is that the purpose of the conduct relate to 20
collective bargaining, working conditions and hours, or other matters of ‘mutual aid or
protection’ of employees”). The question of whether an employee has engaged in concerted
activity is a factual one based on the totality of the circumstances. National Specialties
Installations, 344 NLRB 191, 196 (2005). It is clear that the Act protects discussions between
two or more employees concerning their terms and conditions of employment. However, 25
protection is not denied because employees have not authorized another employee to act as
their spokesperson. NLRB v. City Disposal Systems, 465 U.S. 822, 835 (1984); see also Circle
K Corp., 305 NLRB 932, 933 (1991) (solicited employees do not need to share an interest in
the matter raised by the soliciting employee for the activity to be concerted). Furthermore, the
concept of “mutual aid or protection” focuses on the goal of the concerted activity—such as 30
whether the employees involved are seeking to improve terms and conditions of employment.
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
I find in this instance that the credited evidence shows that Dixon, upon learning that the
terms and conditions of the apprentice’s employment were changing, approached Kelly to 35
discuss this action. Dixon also approached Rodriguez to discuss the apprentice’s employment,
arguing that their job as journeymen was to teach apprentices and that the apprentice should be
moved to another gang. The Act protects Dixon, who upon learning of the apprentice’s work-
related concerns, voiced those concerns to Kelly and Rodriguez even if he had not received
permission from the apprentice. Thus, objectively, Dixon’s conversations with Kelly and 40
Rodriguez about the apprentice are considered to be concerted activity and engaged in for the
purpose of mutual aid or protection.

Applying the burden-shifting framework to Dixon’s lay off, I find that the General
Counsel did not met his initial burden of showing that Dixon’s protected activity was a 45
motivating factor in his layoff. 28 As discussed above, Dixon engaged in protected concerted

28 Contrary to Respondent’s assertion that Dixon’s layoff was not an adverse action, I find
JD(SF)–29–18
14
activity. Moreover, Rodriguez, who is an admitted supervisor, knew of Dixon’s actions. Dixon
credibly testified that he spoke to Rodriguez about the issue regarding the apprentice, and
Rodriguez stated that he would take care of the issue. However, Swartz, who made the decision
to lay off Dixon, credibly testified that he did not know about the incident regarding Dixon and
the apprentice at the time he made the decision to lay off Dixon due to extended breaks. Usually 5
the Board will impute a supervisor’s knowledge of an employee’s protected activity to the
employer, but when it has been established that the supervisor who knew of the protected activity
did not pass the information along to others, the knowledge will not be imputed to the employer.
See State Plaza Hotel, 347 NLRB 755, 756 (2006); Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB
82 (1983); Kimball Tire Co., 240 NLRB 343, 344 (1979). Again, Swartz credibly testified he 10
was not aware of Dixon’s advocacy of the apprentice. Swartz testimony makes sense as
Rodriguez told Dixon he would take care of the issue regarding the apprentice. Dixon relied
upon Rodriguez’s statements, and did not follow up with the apprentice. The issue appeared to
be resolved, and thus it makes little sense for Swartz to be made aware of the issue which
comports with his credited testimony. Thus, Rodriguez’s knowledge of Dixon’s protected 15
activity cannot be imputed to Respondent.
The General Counsel argues that knowledge should be imputed to Respondent under the
“cat’s paw” theory as set forth in Staub v. Proctor, 562 U.S. 411, 422 (2011). In Staub v.
Proctor, the Supreme Court held that an employer is liable for employment discrimination if a 20
supervisor performs an act that has a discriminatory motive that is intended to cause an adverse
action, and the act is a proximate cause of the adverse action. In JM2, 363 NLRB No. 149
(2016), then-Member Miscamarra provided such an alternative rationale where it would be
unnecessary to prove that the decision maker of the adverse action knew of the protected activity,
and the discriminatory animus of the supervisor who influenced the employment decision would 25
be a motivating factor in the employer’s action. Even assuming such an alternative rationale, the
record fails to show that Rodriguez had any animus towards Dixon’s advocacy for the
apprentice. Moreover, the General Counsel failed to prove that Kelly was a supervisor or agent
of Respondent. The only evidence of Rodriguez’s animus presented was an uncorroborated,
incredible, and unreliable account by Marcial. 30
Even assuming Dixon engaged in protected concerted activity which Respondent was
aware, the General Counsel must next prove animus toward the protected activity. Improper
motivation may be inferred from several factors, including pretextual and shifting reasons given
for the employee’s discharge, the timing between an employee’s protected activities and the 35
discharge, inconsistent treatment of employees, and the failure to adequately investigate alleged

that it was. The Facebook project continued for a few more weeks after Dixon was laid off, and
Dixon could have potentially continued to work there. Hence, Dixon suffered a change for the
worse in his term of employment. See Northeast Iowa Telephone Co., 346 NLRB 465, 476
(2006) (an adverse employment action is a change in an employee’s terms and conditions of
employment in an unfavorable way). Respondent cites Piqua Steel Co., 329 NLRB 704, 706
(1999) (crane operator lawfully laid off for lack of work after his refusal to operate crane due to
safety concerns; no other work available; once crane repaired, operator was recalled), for the
proposition that a lay off due to lack of work is not an adverse action. However, the credited
evidence shows that Respondent laid off Dixon for his extended breaks, and not due to lack of
work, despite the language on the layoff notice. It is also undisputed that the work continued on
the Facebook project. Thus, Respondent’s layoff of Dixon was an adverse action.
JD(SF)–29–18
15
misconduct. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005); Promedica Health Systems,
Inc., 343 NLRB 1351, 1361 (2004); Fluor Daniel, Inc. 311 NLRB 498 (1993). Discriminatory
motive may also be established by showing departure from past practice or disparate treatment.
See JAMCO, 294 NLRB 896, 905 (1989), affd. mem., 927 F.2d 614 (11th Cir. 1991), cert.
denied 502 U.S. 814 (1991); Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999). The 5
overwhelming evidence establishes that Dixon was laid off for taking extended breaks, not for
engaging in protected concerted activity. The only factor which supports the General Counsel’s
theory is the timing of the events. Dixon appears to have complained about the treatment of the
apprentice at around the same time Kelly, as relied upon by Swartz, complained that Dixon was
taking extended breaks. However, the timing alone is not sufficient in this matter to demonstrate10
animus towards Dixon’s protected concerted activity. Swartz convincingly testified that he laid
off Dixon for extended breaks after receiving several reports from two foremen. In addition,
Swartz laid off 20 employees that month for the same reason. All these employees, including
Dixon, were laid off for lack of work as noted on their documentation but Swartz testified that
the actual reason was extended breaks. Thus, all the employees were treated the same with some 15
employees receiving warnings to get back to work by Swartz and others being warned by their
foremen. These “warnings” appear to be akin to reminders, and the record lacks any evidence of
these warnings were disciplinary in nature. Swartz’ decision to lay off Dixon along with other
employees for extended breaks rings true considering Respondent had a short deadline to
complete the Facebook project. Respondent clearly did not tolerate the conduct for which Dixon 20
was laid off.
The General Counsel claims that Respondent treated Dixon differently from similarly
situated employees and failed to conduct an adequate investigation. However, there is no
evidence to support such a claim. Swartz “investigated” these accusations of extended breaks by 25
usually observing the employees to ensure such accusations were true before laying off the
employees. The evidence shows that Swartz made the decision to lay off other employees for
taking extended breaks with the same or similar circumstances. First, Swartz or the foremen
would notice employees taking extended breaks. They would then tell the employee to get back
to work. Thereafter, if Swartz received more reports of such action, he made the decision to lay 30
off the employees. Under this scenario, the General Counsel has not shown that the investigation
was suspiciously inadequate. In fact, Swartz admitted that he did not observe Wright taking
extended breaks before he laid him off at the same time as Dixon,
The General Counsel claims that this is “one of those rare cases” in which there is direct 35
evidence of animus (GC Br. at 44). I disagree. I explained at length that I discredited Marcial’s
testimony which was completely unreliable. Without crediting Marcial’s testimony that
Rodriguez “confessed” to him and a coworker about Dixon’s protected concerted activity, and
how Rodriguez intended to lay off Dixon unlawfully, the General Counsel cannot prove direct
animus. Moreover, Respondent’s reason to lay off Dixon is not pretextual. This entire case 40
relies upon the testimony of witnesses. Ultimately, the trier-of-fact must decide who should be
credited and during which events or conversations. As such and as explained above, I rely upon
Swartz’ credible testimony that two foremen including Kelly reported Dixon taking extended
breaks. Thereafter, Swartz observed Dixon taking an extended break and decided to lay him off.
45
Based on the foregoing, I find that the General Counsel has failed to meet its burden to
prove that animus toward Dixon’s protected concerted activities motivated Respondent’s
decision to lay him off.
JD(SF)–29–18
16
Even assuming the General Counsel met the required initial burden of proving
discriminatory motive, I find that Respondent proved that Dixon would have been terminated
even if he had not engaged in protected concerted activities. Swartz made the decision to lay off
Dixon, and credibly testified that he did not know about Dixon’s advocacy on behalf of the 5
apprentice. Swartz laid off many employees in June for the same conduct as Dixon, including
Wright on the same day. I therefore find that the General Counsel failed to prove that
Respondent laid off Dixon for unlawful reasons, and Respondent did not violate Section 8(a)(1)
of the Act. Accordingly, I will dismiss the complaint.
10
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
15
2. Respondent has not engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act, as alleged in the complaint.
On the basis of the foregoing findings of fact, conclusions of law, and the entire record
and pursuant to Section 10(c) of the Act, I issue the following recommended2920
ORDER
The complaint is dismissed.
25
Dated, Washington, D.C. September 18, 2018
Amita B. Tracy
Administrative Law Judge30

29 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.