Skyline Builders, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 2003

340 N.L.R.B. 109 (N.L.R.B. 2003)

SKYLINE BUILDERS, INC. 109
Skyline Builders, Inc. and United Brotherhood of
Carpenters and Joiners of America, South Flor-
ida Carpenters Regional Council. Cases 12–CA–
21783 and 12–RC–8695
September 10, 2003
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On January 14, 2003, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
1. The Respondent asserts that it was denied due proc-
ess and a fair hearing by the judge’s failure to: (1) con-
tinue the hearing until its owner and Vice President John
Watson was available to testify; and (2) institute sub-
poena enforcement proceedings in order to compel the
testimony of its former employee Felix Mazanette. We
do not agree.
With respect to Watson, we note that the Respondent
did not subpoena him to testify. Rather, the General
Counsel subpoenaed him to testify as a witness for the
General Counsel. Although properly served with a copy
of the General Counsel’s subpoena, Watson did not ap-
pear at the hearing, and the Respondent has not provided
any explanation for his failure to appear.4 Moreover, the
Respondent does not contend, nor does the record show,
either that it advised the judge that Watson was needed
as a witness for the Respondent or that it requested a

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Chairman Battista joins his colleagues in adopting the judge’s find-
ing that superintendent Don Perala’s interrogation of employee David
Richardson violated Sec. 8(a)(1) of the Act. He finds it unnecessary to
pass, however, on the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by interrogating employee Mike Solano, because the
finding of an additional unlawful interrogation would be cumulative
and would not affect the Order.
3 We shall modify the judge’s recommended order to remand the
representation proceeding to the Regional Director to resolve the status
of the determinative challenged ballots.
4 The General Counsel elected to proceed with the case without insti-
tuting proceedings to enforce his subpoena.
continuance of the hearing. In these circumstances, we
find that the Respondent was not denied due process by
the judge’s failure to continue the hearing until Watson
was available to testify.
Similarly, we find that the judge did not abuse his dis-
cretion or commit prejudicial error by failing to institute
subpoena enforcement proceedings in order to compel
the testimony of Mazanette. We note that the Respon-
dent has proffered no evidence that it properly served
Mazanette with a subpoena. Additionally, the Respon-
dent does not contend, nor does the record show, that it
requested the judge or the General Counsel to seek judi-
cial enforcement of the subpoena, or that it requested a
continuance of the hearing for that purpose. In these
circumstances, the judge was under no obligation to con-
tinue the hearing or to seek enforcement of the subpoena
sua sponte.5
2. The Petitioner filed nine objections to the election.
Prior to the hearing, the Regional Director approved the
Petitioner’s request to withdraw Objection 9. The judge
recommended that the Petitioner’s Objections 1, 2, and 8
be sustained, and that Objections 3 through 7 be over-
ruled. Absent exceptions, we adopt pro forma the
judge’s recommendation that Objections 3 through 7 be
overruled. We also adopt his recommendation to sustain
Objection 8, which parallels the meritorious complaint
allegation that the Respondent, by its Vice-President
John Watson, threatened on the day before the election
“not to hire employees because they supported the Union
and engaged in union activities.”6
Because we adopt the judge’s recommendation to sus-
tain Objection 8 and affirm his conclusion that the Re-
spondent engaged in other unfair labor practice conduct
during the critical period which interfered with the elec-
tion,7 we find it unnecessary to pass on his recommenda-
tion that Objections 1 and 2 also be sustained.
3. The judge, without conducting an investigation into
the 22 determinative challenged ballots, set aside the
election and remanded the representation case to the Re-
gional Director for further appropriate action.
5 See Best Western City View Motor Inn, 325 NLRB 1186, 1187
(1998) (“[T]he Board institutes enforcement proceedings upon the
request of the party on whose behalf the subpoena was issued. There is
no abdication by the Board of its responsibility to determine the facts of
a case if it does not institute enforcement proceedings sua sponte.”)
6 Objection 8 alleges that the Respondent “created an atmosphere of
fear, intimidation and coercion by stating on the first day of the elec-
tion, in front of employees, that it would never hire anyone that is a
union member, nor let a union member work at Skyline.” As found by
the judge, while Objection 8 refers to “the first day of the election,” it is
clear from the record that the conduct alleged as objectionable actually
occurred the day before the election.
7 See, e.g., White Plains Lincoln Mercury, 288 NLRB 1133, 1139
(1988).
340 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
Contrary to the judge, we believe the proper procedure
is to resolve the status of the challenged ballots before
determining whether the election should be set aside.
See, e.g., Pay N’ Save Stores, 291 NLRB 979 (1988). A
resolution of the challenged ballots may result in the Un-
ion receiving a majority of the eligible votes, which
would make it unnecessary to set aside the election based
on the Union’s objections. Accordingly, we shall re-
mand this proceeding to the Regional Director for a hear-
ing on the eligibility of the challenged voters. Thereaf-
ter, the Regional Director shall issue a Supplemental
Report on Challenged Ballots.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the Administrative Law Judge and
orders that the Respondent, Skyline Builders, Inc., Pom-
pano, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that case 12–RC–8695 is
remanded to the Regional Director for Region 12 for a
hearing on the eligibility of the challenged voters.
Thereafter, the Regional Director shall take further ap-
propriate action, including the preparation of a supple-
mental report.
Following the service of the supplemental report, the
provisions of Section 102.69 of the Board’s Rules and
Regulations shall apply.

Marcia Valenzuela, Esq., for the General Counsel.
Alexander Caccavale, of Sunrise, Florida, for the Respondent.
DECISION
JOHN H. WEST, Administrative Law Judge. The charge in
12–CA–21783 was filed by the United Brotherhood of Carpen-
ters and Joiners of America, South Florida Carpenters Regional
Council (Union) on September 6, 2001.1 It was amended on
November 27 and February 27, 2002. A complaint was issued
on July 31, 2002, alleging collectively that the Respondent
engaged in unfair labor practices within the meaning of Sec-
tions 8(a)(1) and (3) of the National Labor Relations Act (the
Act) in that assertedly it interrogated employees about their
union support and activities, threatened not to hire employees
because they supported the Union and engaged in union activi-
ties, and discharged employees Mike Solano and David
Richardson because they joined, supported and assisted the
Union, and engaged in concerted activities, and to discourage
employees from engaging in those activities. The Respondent
filed an answer denying these allegations, except that the Re-
spondent did not respond to the allegation that it threatened not
to hire employees because they supported the Union and en-
gaged in union activities.
By Order dated September 5, 2002, Case 12–CA–21783 was
consolidated with Case 12–RC–8695 which involves objections

1 All dates are in 2001 unless otherwise stated.
filed on November 2 by the Union to conduct which allegedly
affected the results of an election held on October 30. It was
concluded in the Order, that the objections, described more
fully below, and the challenged ballots (except for the chal-
lenge to the ballot of a specified individual) raise substantial
and material issues which can best be resolved by a hearing.
A hearing on these consolidated cases was held before me in
Miami, Florida, on October 28 and 29, 2002. On the record,
including the demeanor of the witnesses, and after due consid-
eration of the brief filed by counsel for General Counsel,2 I
hereby make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Florida corporation, with an office and
place of business in Pompano Florida, has been engaged in the
construction industry as a general contractor. The complaint
alleges, the Respondent admits, and I find that at all material
times herein the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
According to the testimony of the Respondent’s President
and part owner, Alexander Caccavale, the Respondent had one
superintendent on the Marriott Renaissance jobsite just north of
Miami, Florida, and the superintendent had the authority to
hire, fire, lay off, and discipline employees.
The Respondent’s Vice President and part owner, John Wat-
son, was subpoenaed by counsel for General Counsel to appear
on the first day of the trial herein, October 28, 2002, General
Counsel’s Exhibit 2. Caccavale indicated on the record on the
1st day of the trial herein that Watson was out of town when the
involved subpoena arrived, Watson was due back in town on
the afternoon of October 28, 2002, and Watson would be happy
to appear at the trial herein on October 29, 2002.
General Counsel’s Exhibit 8(a) is a “90-DAY EVALUATION
PERIOD” form for Christopher G. McMann which indicates that
his date of hire is “6/1/01” and his position is “Project Supt.” On
General Counsel’s Exhibit 8(b), an “EMPLOYEE DATA
FORM,” for McMann, his job title of “Project Supt” is crossed
out and “Supervisor” is written on the line. Caccavale testified
that McMann was not a project superintendent of the Respondent
but rather he was a supervisor; that as a supervisor McMann had
the authority to hire, fire and lay off; that McMann was hired as a
supervisor for the Life Care Center job but when he was trans-
ferred to the Marriott Renaissance job he did not have the author-
ity to hire or fire; that the superintendent on the Marriott Renais-
sance job, Don Perala, had the authority to hire and fire; that if
McMann was not on the Marriott Renaissance job he would have
had the authority to hire or fire; that it was not true that Perala
2 Counsel for General Counsel’s motion to strike Respondent’s three
page letter (brief) for failure to comply with Sec. 102.42 of the Rules
and Regulations of the National Labor Relations Board (Board) be, and
it is hereby, granted.
SKYLINE BUILDERS, INC. 111
would follow McMann’s recommendation without further inves-
tigation concerning hires and fires; and that in his affidavit to the
Board he indicated that Perala would follow McMann’s recom-
mendation without looking further. McMann was not listed as an
eligible voter in the Board election held on October 30.
On August 20, the Union filed a petition with the Board
seeking to be certified as the representative of the Respondent’s
employees. A Board affidavit of service dated August 21, 2001
for the petition was received as General Counsel’s Exhibit 10.
And fax transmittal documents showing a fax transmission
from the Board’s Miami office to Caccavale were received as
General Counsel’s Exhibit 11.
On August 23, the Respondent discharged its employee Mike
Solano, who was a deck foreman at the Marriott Renaissance
jobsite. Solano did not have authority to hire, fire, or transfer,
suspend, or discipline employees, or effectively recommend the
hiring or firing of employees. One “EMPLOYEE CHANGE
OF STATUS FORM,” General Counsel’s Exhibit 14(a), indi-
cates that Solano’s departure was a “VOLUNTARY
TERMINATION” and the box on the form for “No Reason
Given” is checked off. General Counsel’s Exhibit 14(b) is a
copy of General Counsel’s Exhibit 14(a) with the check mark
removed from “No Reason Given” and a check mark placed in
the box for “Unsatisfactory Performance” under
“INVOLUNTARY TERMINATION.” General Counsel’s Ex-
hibit 14(b) also differs from General Counsel’s Exhibit 14(a) in
that in 14(b) in the comments box under “INVOLUNTARY
TERMINATION” the following appears: “disrupted behav-
ior.”3 The Respondent’s pay register report as of “8/31/2001,”
General Counsel’s Exhibit 19, indicates that during the in-
volved pay period, Solano worked 40 hours.4
The Respondent’s pay register report as of “9/07/2001,”
General Counsel’s Exhibit 22 indicates that during the involved
pay period, Solano worked zero hours.
Solano was hired by the Respondent in the beginning of June
2001 as a carpenter on the Marriott Renaissance job, and within
hours of starting work he was made a deck foreman. He had
been a carpenter for about 18 years and he had been a member
of the Union for about 3 years. Solano began soliciting signa-
tures on union authorization cards at the Marriott jobsite his
second week on the job, speaking about the Union to 20–30 of
the 40–50 employees the Respondent had on the job. Solano
continued his efforts up until the day he was dismissed obtain-
ing at least 20 signed union authorization cards. In July 2001
(or about 3–4 weeks before he was dismissed) he was soliciting
signatures on union authorization cards during a rainstorm

3 While Caccavale himself represented the Respondent at the trial
herein, formerly attorney Harry 0. Boreth entered a notice of appear-
ance, General Counsel’s Exh. 7. There appears to be a striking similar-
ity in the “r”s in Boreth’s signature on General Counsel’s Exh. 7 with
the “r”s in the words “disrupted [sic]behavior.” Nancy Sickmiller, who
was an employee of the Respondent, signed General Counsel’s Exh. 14
on the supervisor’s line. At the trial herein Caccavale indicated that he
could call her as a witness regarding the changes on General Counsel’s
Exh. 14(b). Sickmiller was never called as a witness. Superintendent
Perala testified that Sickmiller was a secretary, she was not his supervi-
sor, and she was not in charge of any of his men in the field.
4 The Respondent’s pay period is 1 week.
while the employees were being paid but not working. When
McMann, who Solano described as a superintendent of the
Respondent, saw him doing this, McMann said to him “you’re
organizing . . . you’ve got big balls Mike” (Tr. p. 182). Solano
testified that he and Richardson were the main organizers on
that jobsite; that about 2–3 weeks before he was dismissed
(after McMann saw him soliciting signatures on union authori-
zation cards) Superintendent Perala approached him at the Mar-
riott jobsite and asked him “Mike you’re not on the books are
you” (Tr. p. 184); that he told Perala that he was; and that to be
“on the books” means to be still affiliated with the Union. So-
lano further testified that when he was discharged Perala told
him that Caccavale said that there was too much supervision
and a low budget,5 he hated to see him go because he knew how
to push the men, and that he would be paid for Friday; that he
believed that they were on the 7th floor of the Marriott Renais-
sance when he was dismissed; and that when he went to the
jobsite the day after he was dismissed he saw about 10 new
faces on the job. On cross-examination Solano testified that the
supervisor of the Respondent who hired him, Bob Hana, knew
that he was a member of the Union since he wore a union T-
shirt when he was hired; that at the behest of Hana, he brought
journeymen carpenters to the Marriott jobsite at the end of June
or the beginning of July and Hana hired them; that McMann
saw him soliciting signatures on union authorization cards just
after a safety meeting had been concluded; and that 3 or 4
weeks before he was dismissed he exchanged words with Felix
Maturell, the safety man, who did not follow his instructions to
cover a hole near an end column with plywood; and that Wat-
son asked him to let the matter go and he did.
The Respondent’s former employee Richardson testified that
he and Solano were the main union organizers on the Marriott
Renaissance job; and that he witnessed supervisor McMann
seeing Solano giving union authorization cards to a few of the
Respondent’s employees who spoke Spanish.
Respondent’s Superintendent Perala worked on the Respon-
dent’s Marriott Renaissance job which was located at Pine Is-
land Road and Interstate Highway 595. In addition to supervis-
ing the Respondent’s employees on this jobsite, he also super-
vised the Respondent’s subcontractors, Florida Coast Builders
and R. J. Crane, both of which employed union employees.
None of the Respondent’s employees who worked on this job
were union. Perala testified that Solano ceased working for the
Respondent on the Marriott Renaissance job around the middle
to the end of August 2001 because at the time the Respondent
had to trim back supervision on this job; that he told Solano
that he was terminated because there was a labor cutback; that
at the time of Solano’s termination he knew that Solano had
worked union jobs before but he did not realize how involved
Solano was; that Solano was not terminated because he be-
lieved that Solano had anything to do with the Union; that after
Solano was terminated, he never filled Solano’s position with
anyone else; and that he did not believe that he ever asked any
employee if they supported union activities on the Marriott
5 Caccavale testified that he had nothing to do with Solano’s dis-
charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
project.6 When asked by Caccavale what was McMann’s posi-
tion at the Marriott, Perala testified that McMann was a super-
intendent and performed layout duties at the Marriott Renais-
sance job. On cross-examination Perala testified that he made
the decision to layoff Solano, he did not have any problems at
all with Solano’s work performance, and Solano was laid off
due to labor cutbacks; that before Solano was laid off he knew
that Solano had worked union jobs, Solano wore a union sticker
on his hard hat, and Solano, along with a lot of the other em-
ployees on the Marriott Renaissance job, wore T-shirts with the
union emblem on them; that when he laid off Solano he did not
know that Solano supported the Union; that the first layoffs
from the Marriott Renaissance job occurred around mid-
September 2001 and there could have been five or six employ-
ees laid off at that time; that in August 2001 there were 60–65
Skyline employees working on the Marriott Renaissance job;
that there was a second layoff of Skyline employees at the Mar-
riott Renaissance jobsite but he could not recall if it occurred in
October 2001; that he did not recall how many employees were
laid off during the third layoff at this job; that in October or
November 2001, 11 or 12 employees were transferred from the
Marriott Renaissance job to other of the Respondent’s projects;
that the fourth layoff occurred in January 2002 when the job
was completed; and that to his knowledge Skyline did not re-
hire employees who were laid off in 2001.7 Subsequently,
Perala testified that the Respondent did not hire any additional
employees after Solano was terminated.
On August 27, the Respondent discharged its employee
David Richardson. Richardson was a layout man who had been
on the Marriott Renaissance jobsite since May 2001. Caccavale
testified that as a layout man, Richardson was a key part of the
job. One “EMPLOYEE CHANGE OF STATUS FORM,” Gen-
eral Counsel’s Exhibit 13(a), indicates that Richardson’s depar-
ture was a “VOLUNTARY TERMINATION” and the box on
the form for “No Reason Given” is checked off. General Coun-
sel’s Exhibit 13(b) is a copy of General Counsel’s Exhibit 13(a)
with the check mark removed from “No Reason Given” and a
check mark placed in the box for “Unsatisfactory Performance”
under “INVOLUNTARY TERMINATION.” General Coun-
sel’s 13(b) also differs from General Counsel’s 13(a) in that in
13(b) in the comments box under “INVOLUNTARY
TERMINATION” the following appears: “disrupted (sic] be-
havior.”8 The Respondent’s pay register report as of

6 Perala answered “[n]o” to the following questions asked by Cac-
cavale: did you ever (a) ask any applicants if they had union back-
ground, (b) tell any applicants that they would not be hired because
they supported the Union or if they engaged in any union activities, (c)
fire anybody for supporting the Union, and (d) ask any employee if
they attended union meetings or what went on at union meetings.
7 Perala’s daily reports from August 2001 to January 16, 2002, refer-
ring to the Marriott job were received as GC Exh. 29. His payroll re-
cords, which he supplied to the Respondent so that it could create a
payroll register, were received as GC Exhs. 30 through 49. The Re-
spondent’s payroll records covering the period from January 5, 2001, to
June 28, 2002, were received as R. Exh. 8.
8 As noted above, while Caccavale himself represented the Respon-
dent at the trial herein, formerly attorney Harry 0. Boreth entered a
notice of appearance, GC Exh. 7. There appears to be a striking similar-
ity in the “r”s in Boreth’s signature on GC Exh. 7 with the “r”s in the
“8/31/2001,” General Counsel’s Exhit 18, indicates that during
the involved pay period Richardson worked 40 hours. The Re-
spondent’s pay register 5 report as of “9/07/2001,” General
Counsel’s Exhibit 21, indicates that during the involved pay
period Richardson worked 2 hours. The Respondent’s pay
register report as of “9/14/2001,” General Counsel’s 24, indi-
cates that during the involved pay period Richardson worked
zero hours.
Richardson has been a carpenter for 23 years and a layout
carpenter for about 4 years. He was hired as a layout carpenter
by the Respondent for the Marriott Renaissance job. He re-
ceived $18 an hour whereas the regular carpenters received $13
or $13.50 an hour. As a layout carpenter, it was his responsi-
bility to layout the building. Richardson has been a member of
the Union since June 1997. He engaged in union activity while
employed by the Respondent in that from mid-June 2001 until
he was terminated on August 27 he would tell employees at
breaktime and during lunchtime about the benefits of union
representation, he handed out union authorization cards and he
was involved in union meetings at the jobsite. Richardson testi-
fied that he spoke to about 25–30 employees about the Union;
that at the time the Respondent had about 40–45 employees on
the Marriott Renaissance job; that about 39 or 40 were inter-
ested in the Union and signed union authorization cards; that he
and Solano were the main union organizers on the job; that the
Respondent’s superintendent at the Marriott Renaissance job-
site, Perala, in late July or early August 2001, asked him if he
was a union carpenter and he told Perala that he was; that Per-
ala said that he did not like union carpenters because they
thought highly of themselves and they were “actually fucking
nothing” (Tr. p. 88); that Perala’s attitude toward him changed
dramatically after that conversation; that he tried to organize
the Respondent’s employees because of safety conditions
which he discussed with Perala, Watson, and Caccavale; that on
August 25, a Saturday, he spoke to Perala about inadequate
support near an open elevator pit and open stairway and Perala
told him to mind his own business; that on Monday August 27,
he told Watson what happened over the weekend and Watson
told him to mind his own business and started cursing; that later
on August 27, he went to the company trailer to get some tools
and Caccavale, with Perala present, told him “you’re fired,
you’re not good for moral on the job, and you’re no longer
needed here, to take my tools, and to leave his equipment and
tools there, and get off the jobsite, and don’t come back here”
(Tr. p. 91)9 and that no one from management at Skyline or the
general contractor ever told him that there was a problem with
his work performance. On cross-examination Richardson testi-
fied that in June or July 2001, after he witnessed a piece of
plywood falling out of rigging as it was lifted off the building
and hitting an employee on the head, he telephoned OSHA and

words “disrupted behavior.” Nancy Sickmiller, who was an employee
of the Respondent, signed GC Exh. 13 on the supervisor’s line. As
noted above, at the trial herein Caccavale indicated that he could call
her as a witness regarding the changes on GC Exh. 13(b). Sickmiller
was never called as a witness.
9 While Caccavale represented the Respondent at the trial herein, and
he was called as a Rule 611(c) witness by counsel for General Counsel,
Caccavale did not specifically deny this testimony.
SKYLINE BUILDERS, INC. 113
reported the problem but no one ever showed up at the jobsite;
that he did not argue with Perala over safety issues but when he
approached Perala about a safety issue Perala would “fuss
about it” (Tr. p. 99); that when he told Perala about a problem
Perala told him that he did not like his attitude and he was
digging into business that did not concern him; that when he
spoke to Watson about the employee getting hit on the head,
Watson laughed and said that the employee got a wake up call;
that Watson ignored his expressed safety concerns; and that he
did not threaten Perala.
Subsequently Richardson testified that he never wore a union
T-shirt to the Marriott Renaissance job but it was possible that
he had a union sticker on his hard hat at that jobsite; that no one
from Respondent’s management ever made an issue of his
wearing a union sticker on his hard hat if he did engage in such
conduct; that when he was hired he told the superintendent who
interviewed him, Frank, about the jobs he had previously
worked; that all three of the jobs he described were union jobs;
that he personally obtained signatures on 20–25 union authori-
zation cards; that he did not think that anyone in management
or supervision at the Respondent ever knew that he obtained
signatures on union authorization cards; that when he discussed
safety issues with Respondent’s managers or supervisors, he
was not accompanied by other employees; that he was not
nominated by a group of employees to speak to Respondent’s
management or supervisors on the employees’ behalf with re-
spect to safety measures; and that employees would come to
him and tell him about their safety concerns, i.e. the lack of
railings in an area, because he was the layout carpenter.
At one point during his cross-examination of Richardson,
Caccavale stated “[t]here’s so much work out there it’s unbe-
lievable that somebody of this man’s [Richardson’s] caliber . . .
would be out of work. They’d die to have a guy like that.” (Tr.
pp. 105 and 106)
Perala testified that he terminated Richardson for disobedi-
ence and not performing his job; that Richardson was termi-
nated for being very argumentative and refusing to do his lay-
out duties; that he guessed that Richardson threatened him with
bodily harm when he terminated Richardson; that Watson was
there when this happened; and that he was not aware of an em-
ployee being hit on the head with a piece of plywood at the
Marriott jobsite when the piece fell from the crane as it was
lifted to the 4th floor. On cross-examination Perala testified
that Richardson came to him with safety issues involving all
employees probably at safety meetings and at other times.
Subsequently, Perala testified that he worked with Richardson
for 4–6 weeks before he terminated Richardson; that he was
sure that he disciplined Richardson during that period for short-
comings in his work performance; that he did not document any
prior discipline; that he discussed shortcomings in Richardson’s
performance with Caccavale at least three or four different
times; that Richardson said to him “lets step out of the trailer
and I’ll kick your ass so to speak” (Tr. p. 291);10 that this was

10 As indicated above, Perala testified that Watson was present when
Perala terminated Richardson. Watson does not corroborate this. In-
deed even though counsel for General Counsel subpoenaed Watson and
even though Caccavale indicated on the record at the trial herein that
the first time that Richardson indicated a willingness to fight;
and that he was sure that he said something to Richardson about
his failure to perform an assigned task in a timely manner re-
sulted in the crew not being able to work, and this may have
triggered Richardson’s outburst.
On rebuttal, Richardson testified that no member of Respon-
dent’s management ever talked to him about concerns they had
about his work performance or how fast he was performing his
work; and that he never threatened anyone while he was em-
ployed by the Respondent. Subsequently Richardson testified
that he did not recall any discussion on the day he was termi-
nated with Perala about any tasks he was supposed to perform;
that Perala did not say anything to him when he was discharged
but rather Caccavale was the only person who said something
to him at the time11; that he did not ask Perala to step outside
the trailer on or about the day he was discharged by the Re-
spondent; and that he never had a heated discussion with Per-
ala.
General Counsel’s Exhibit 20 is a copy of the Respondent’s
pay register report as of “09/07/2001” which indicates that
Felix Maturell worked for 37 hours during this pay period.
General Counsel’s Exhibit 23 is a copy of the Respondent’s pay
register report as of “09/14/2001” which indicates that Felix
Maturell worked for 40 hours during this pay period. General
Counsel’s Exhibit 25 is a copy of the Respondent’s pay register
report as of “09/21/2001” which indicates that Felix Maturell
worked zero hours during this pay period. Caccavale testified
that Maturell was no longer an employee of the Respondent at
this time, he quit in 2001, and the Respondent did not have a
change of status form for Maturell. Richardson testified that a
carpenter named Felix (Richardson did not remember his last
name) had the responsibility to make sure that all of the hand-
rails were up and the holes were covered.
By letter dated September 20, 2001, General Counsel’s Ex-
hibit 15, the Regional Director for Region 12 of the Board for-
warded a copy of the charge in Cases 12–CA–21783 to the
Respondent.12
Before the Board conducted election on October 30, the Re-
spondent distributed T–shirts to employees which read “Vote
No” and flyers which advised the employees to “Vote No,”
General Counsel’s Exhibit 12. Caccavale testified that he told a
union organizer that he was not interested in the Respondent
becoming unionized in 2001; that he did not want to negotiate
with the union over the terms and conditions of employment;
and that he was afraid that having to negotiate with the union
would affect his company financially.13

Watson would honor the subpoena, Watson did not testify at the trial
herein for either counsel for General Counsel or the Respondent.
11 Caccavale did not deny this.
12 Similar letters were forwarded when the charge was amended, GC
Exhs. 16 and 17.
13 The Union had a project agreement in late 2000 or early 2001 with
the Respondent for the work it did on the Diplomat Hotel. The agree-
ment covered only that job and the Respondent would not have been
able to work the job without such an agreement because the Diplomat
Hotel was a union-funded job and it was required that any contractor
going on that jobsite would have to at least sign a project agreement to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
On October 29 the Respondent provided its employees at the
Marriott Renaissance jobsite with lunch. This was the only
time it provided its employees with lunch before the October 30
Board election.
Guillermo Choo, who is a millwright and a union member,
testified that he went to the Marriott Renaissance jobsite on
October 29 with Paul D’antuono, who is a union organizer; that
someone from top management of the Respondent told the
employees at the luncheon provided by the Respondent to vote
no and there would be other jobsites that the Respondent was
going to work on; that his friend, D’antuono said that if the
Respondent had other jobsites, he wanted to go and work for
the Respondent; that the manager from the Respondent said that
D’antuono was not going to work for the Respondent,
D’antuono asked why not, and the manager said because you
are union; that the manager of the Respondent told the employ-
ees assembled that the Respondent had other jobs but if they
voted for the Union, he was not going to transfer them to the
jobsite; and that D’antuono then said did you guys hear that he
is not going to hire me because I’m union. Subsequently Choo
testified that on October 29, Respondent’s manager told the
employees at the Marriott jobsite to vote no because if they
voted for the Union, Skyline was going to have another job and
they would not be transferred over to the other jobsite; that
D’antuono told Respondent’s manager that if the company was
going to another jobsite, he wanted to work for the Respondent;
that the manager said that since D’antuono was union he would
never work for the Respondent; that D’antuono then said he is
not going to hire me because I’m union; that Respondent’s
manager asked him if he ever worked with his tools; that
D’antuono did not have a union sticker on his hard hat nor was
he wearing a union T-shirt, nor did he have anything on that
day to identify him as a union; and that D’antuono did not iden-
tify himself as a union organizer.
Wallex Dumesle, who was employed by the Respondent as a
journeyman carpenter at the Marriott Renaissance jobsite from
May 30 until he was laid off on November 3—General Coun-
sel’s Exhibit 28, testified that he was present on October 29 at
the Marriott Renaissance jobsite at lunchtime when Watson
spoke to the Respondent’s employees; that this was the only
time the Respondent provided its employees with lunch while
he was employed by the Respondent; that D’antuono, who
identified himself as an ironworker, and Choo were there when
Watson spoke to the employees; that when Watson spoke to the
employees, D’antuono spoke up saying that the Union is not a
3rd party. It is the employees; that Watson asked D’antuono
who he was and D’antuono said that he was an ironworker; that
Watson then asked D’antuono what he was doing there since
the Respondent did not have jobs for ironworkers; that Watson
told D’antuono that he would not give him a job and D’antuono
asked why; and that Watson said that he would not give
D’antuono a job because he was union, and D’antuono said that
was not fair. On cross-examination, Dumesle testified that a
couple of the ironworkers who worked for the Respondent at
the Marriott Renaissance jobsite were in the Union; that in

do work there. The Respondent did not have any other contracts with
the Union.
August 2001, he started wearing union stickers on his hard hat
and a union T-shirt while he worked on the Marriott Renais-
sance jobsite; and that he wore the hard hat all the time and the
T-shirt once a week until the petition was filed and then he
wore it every day. And on recross Dumesle testified that when
he was laid off, he was working on the nineth floor of the Mar-
riott Renaissance and the hotel had nine floors; and that he was
not the only one laid off at that time.
A Board election was conducted on October 30. The tally of
ballots showed that there were 62 eligible voters, 18 votes were
cast for petitioner, 21 votes were cast against the participating
labor organization, and there were 22 challenged ballots.
On November 2, the Petitioner filed timely objections to
conduct affecting the election.
Reniel Rodriguez, a carpenter, testified that when he worked
for the Respondent on its Pinecrest High School job he “organ-
ized for the [Board] election . . . [at the] Pinecrest High School
[job]” (Tr. p. 216); that he did not wear union T-shirts to work;
that the Respondent did not terminate him for his union activi-
ties; that when he was rehired by the Respondent after a higher
paying job did not work out, he was not asked by the Respon-
dent if he was affiliated with the Union; that the union meetings
with employees were not held on the jobsite at Pinecrest High
School but were held at a store on the corner after work; and
that when he testified herein he was no longer a member of the
Union.
Sony Lundy, who worked for the Respondent as a carpenter
for 18 months, testified that he attended “meetings for the Un-
ion” (Tr. p. 220); that the Respondent never interrogated him
about his union activities; that he left the Respondent when he
obtained a better job; and that he worked on three jobs for the
Respondent, which did not include the Marriott Renaissance
job.
Eddie Reynoso, who at the time of the hearing herein was
employed by the Respondent as a carpenter’s helper, testified
that he worked at the Marriott Renaissance job; that he did not
wear union paraphernalia; and that the Respondent did not ask
him if he was a union member.
Jose Cruz, who at the time of the hearing herein was em-
ployed by the Respondent as a driver, testified that he was not
in the Union, and the Respondent never interrogated him about
union activities.
Adolfo Serrera, who at the time of the hearing herein was
employed by the Respondent as a carpenter, testified that he has
worked for the Respondent since September 2000, and since
then he has never been laid off; that he is not a member of the
Union; that the Respondent never interrogated him about union
activities, and never asked him to wear a “Vote No” shirt; that
the Respondent never passed out “Vote No” shirts; and that the
Respondent never forced him to wear nonunion paraphernalia.
Ronald Cruz, who at the time of the hearing herein was a su-
perintendent for the Respondent, testified that he held a union
card but it was not up to date; that prior to the Board election,
the Respondent did not discriminate against any of their em-
ployees for supporting the Union; that the Respondent does
pass out “Vote No” shirts on the job; that he never told any
applicants that they would not be hired for engaging in union
activities; that he did not ask any employee what they thought
SKYLINE BUILDERS, INC. 115
of the Union or if they attended union meetings; that he was
aware that on the day of the voting in the Board election, Reniel
Rodriguez sat in a trailer on the side of the Union and he was
not asked to nor did he terminate Rodriguez after that; and that
he was a union member for 8 years and was a journeyman with
them. On cross-examination, Ronald Cruz testified that the
Respondent provided employees with “Vote No” shirts at the
Marriott Renaissance jobsite; and that he did not work full-time
on the Marriott jobsite at any time. On redirect, Ronald Cruz
testified that on a few occasions he did work on the stairs at the
Marriott Renaissance jobsite. And on recross, Ronald Cruz
testified that the last time he paid union dues was 1994, and he
guessed that he was no longer a union member if he did not pay
union dues.
Respondent’s Exhibits 6(a)–(g) are union flyers which were
passed out at the Marriott Renaissance Hotel job.
B. Analysis
Paragraph 5(a) of the complaint alleges that on various occa-
sions, in or around late July 2001, early August 2001, mid-
August 2001, and late August 2001, on dates not more specifi-
cally known to the Regional Director of Region 12 of the
Board, Respondent, by Don Perala, at Respondent’s Marriott
Renaissance jobsite, interrogated employees about their union
support and activities. As set forth above, the Respondent
called four witnesses who testified that they were not interro-
gated about their affiliation with the Union. The Respondent
indicates that it has hired individuals who are in a union but it
has never knowingly hired someone who is organizing for a
union. Only one of the four, Rodriguez, testified that he organ-
ized for a Board election which was conducted at another of the
Respondent’s jobsites. However, the Respondent did not de-
velop the record with respect to the extent of Rodriguez’ orga-
nizing activities, Rodriguez did not wear union T-shirts to
work, the union meetings with employees were held after work
at a store which apparently was not on the jobsite, and the only
union activity of Rodriguez cited by Superintendent Ronald
Cruz was the fact that Rodriguez was a union observer at the
Board election. Superintendent Ronald Cruz testified that he
was not asked to terminate Rodriguez after he was an observer
for the Union at the Board election. Superintendent Ronald
Cruz did not testify that he knew anything about any organizing
activity on the part of Rodriguez before the Board election. On
the one hand, the Respondent did not show that it was aware of
any organizing activity on the part of Rodriguez before the
Board election. Indeed while the Respondent did rehire Rodri-
guez, the only union activity the Respondent refers to is the fact
that Rodriguez was an observer at a Board election. On the
other hand, it has been demonstrated by counsel for General
Counsel that the Respondent was aware of the organizing activ-
ity of Solano before he was discharged.14 Solano’s testimony
about the interrogation is credited. Perala asked him, after Su-
pervisor McMann saw him soliciting signatures on union au-

14 Although Solano was a deck foreman, he was not a supervisor in
that he did not have the authority to hire, fire, transfer, suspend, lay off,
or discipline employees, or effectively recommend the hiring or firing
of employees.
thorization cards, if he was on the union books.15 Perala was
not a credible witness. As concluded below, Perala fabricated a
scenario with respect to the termination of Richardson. While
Perala denied engaging in certain conduct, he never specifically
denied asking Solano if he was on the books. This was not an
isolated incident. As concluded below, the Respondent does not
deny that before the Board election, it told employees that they
would not be hired for other jobs if they were in the Union.
While Solano wore a union T-shirt to the Marriott Renaissance
job before this, he was not asked if he was on the union books
until after he was seen by McMann soliciting signatures on
union authorization cards. The Respondent differentiated be-
tween someone who would wear a union T-shirt or a union
sticker on his hard hat, and someone who was organizing for
the Union. The former was not discriminated against. The latter
was. The former was not considered a threat. The latter was. In
asking Solano if he was on the union books, Perala was putting
Solano on notice that he was aware of Solano’s union activities.
It might be argued that since Solano continued his organizing
activities, he was not intimidated and the interrogation was not
coercive. The test is not a subjective test, however. The timing
of the interrogation, only after Solano was seen by a supervisor
soliciting signatures on union authorization cards, and the con-
text in which it occurred, during an organizing drive when other
unfair labor practices occurred, warrants the conclusion that
Solano’s interrogation by Perala was coercive.
As noted above, Perala was not a credible witness. Richard-
son’s testimony regarding his interrogation by Perala is cred-
ited. Richardson was not open about his union organizing. In-
deed Richardson speculated that no one in Respondent’s man-
agement or supervision ever knew that he obtained signatures
on union authorization cards. But he personally obtained signa-
tures on 20–25 union authorization cards from the approxi-
mately 45–60 employees on the job at the time, he was in-
volved in union meetings at the jobsite, and he was one of the
two main union organizers on the job. Both Solano and
Richardson were interrogated by Perala. It has not been dem-
onstrated that any other employee was interrogated by Perala
regarding the Union. Perala either knew of or suspected
Richardson’s organizing activities and he wanted to put
Richardson on notice that he was aware of what was going on.
Richardson’s testimony that Perala’s attitude toward him
changed dramatically after the interrogation was not refuted by
the Respondent. The interrogation was coercive. The Respon-
dent violated the Act as alleged in paragraph 5(a) of the com-
plaint.
Paragraph 5(b) of the complaint alleges that on or about Oc-
tober 29, Respondent, by John Watson, at Respondent’s Mar-
riott Renaissance jobsite, threatened not to hire employees be-
cause they supported the Union and engaged in union activities.
The Respondent did not deny this in its answer to the com-
15 Even Caccavale in his affidavit indicated that on the Marriott Ren-
aissance job, Perala would follow McMann’s recommendation regard-
ing hiring and firing without looking further. McMann was a supervi-
sor. He was viewed as a supervisor by the employees. Perala described
McMann as a superintendent. And McMann was not on the list of eli-
gible voters for the October 2001 Board election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
plaint. Consequently this allegation is admitted. Additionally,
Watson did not testify to deny this allegation notwithstanding
the fact that he was subpoenaed by counsel for General Coun-
sel. The unrefuted testimony of the witnesses for counsel for
General Counsel about what Watson said at the October 29
luncheon at the jobsite is credited. The Respondent violated the
Act as alleged in paragraph 5(b) of the complaint.
Paragraph 6 of the complaint alleges that on or about August
23, Respondent discharged Solano, and on or about August 27,
Respondent discharged Richardson because they joined, sup-
ported and assisted the Union, and engaged in concerted activi-
ties, and to discourage employees from engaging in these ac-
tivities.
As set forth by the National Labor Relations Board in Fluor
Daniel, Inc., 304 NLRB 970 (1991):

In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st dr. 1981), cert. denied 455 U.s. 989 (1982) the Board set
forth its causation test for cases alleging violations of the Act
turning on employer motivation. First the General Counsel
must make a prima fade showing sufficient to support the in-
ference that protected conduct was a ‘motivating factor’ in the
employer’s decision. Once accomplished, the burden then
shifts to the employer to demonstrate that the same action
would have taken place notwithstanding the protected con-
duct. It is also well settled, however, that when a respondent’s
stated motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is an
unlawful one that the Respondent desires to conceal. The mo-
tive may be inferred from the total circumstances proved. Un-
der certain circumstances the Board will infer animus in the
absence of direct evidence. That finding may be inferred from
the record as a whole. [Footnote omitted.]

In order to establish a prima facie violation of Section 8(a)(1)
and (3) of the Act, the General Counsel must establish union or
concerted protected activity, employer knowledge, animus and
adverse action taken against those involved or suspected of
involvement which has the effect of encouraging or discourag-
ing union or concerted protected activity. Inferences of animus
and discriminatory motivation may be warranted under all the
circumstances of a case, even without direct evidence. Evi-
dence of false reasons given in defense may support such infer-
ences.
General Counsel has demonstrated that Solano engaged in
union activity, the Respondent knew of Solano’s union activity
when he was terminated, there was antiunion animus of the part
of the Respondent, and taking the adverse action against Solano
had the effect of discouraging union activity. General Counsel
has made a prima facie showing sufficient to support the infer-
ence that protected conduct was a motivating factor in the Re-
spondent’s decision.
Has Respondent demonstrated that the same action would
have taken place notwithstanding the protected conduct? So-
lano was Laid off when the Respondent was working on the 7th
floor of the project. The Respondent still had to complete the
8th, and 9th floors and the roof. Caccavale claims he was not
involved in the decision to lay off Solano. Perala testified that
Solano was laid off because the Respondent had to trim back on
supervision. But Solano was not a supervisor. He was paid
slightly more than the other carpenters but this was for being a
deck foreman. The Respondent did not demonstrate that any
supervisors were laid off when Solano was laid off. Solano was
a credible witness. Perala was not a credible witness. Solano’s
testimony that when he was laid off, Perala told him that Cac-
cavale said that there was too much supervision is credited.
This is what Perala told Solano when he laid off Solano. Cac-
cavale, however, never testified that he told Perala that there
was too much supervision before Solano was laid off. When he
testified at the trial herein, Perala testified that Solano was ter-
minated because the Respondent had to trim back supervision
and there was a labor cutback. But the labor cutbacks did not
commence until mid-September 2001, about 3 weeks after So-
lano was laid off. The Respondent has not demonstrated that
Solano would have been laid off when he was notwithstanding
his protected conduct. Additionally, as pointed out by counsel
for General Counsel in her brief herein, Solano’s termination
documents, the Change of Status forms, are not only inconsis-
tent with each other, but they are inconsistent with the reason
supplied by Perala for Solano’s termination. Respondent’s rea-
son for Solano’s termination is pretextual.16 The Respondent
has violated the Act as alleged in paragraph 6(a) of the com-
plaint.
General Counsel has demonstrated that Richardson engaged
in union and concerted protected activity, the Respondent knew
of Richardson’s concerted protected activity when he was ter-
minated, there was antiunion animus on the part of the Respon-
dent, and taking the adverse action against Richardson had the
effect of discouraging union and concerted protected activity.
General Counsel has made a prima fade showing sufficient to
support the inference that protected conduct was a motivating
factor in the Respondent’s decision.
Has Respondent demonstrated that the same action would
have taken place notwithstanding the protected conduct? Cac-
cavale testified that the sole reason for Richardson’s termina-
tion was “due to the verbal exchanges told to . . . by John Wat-
son” (Tr. p. 49). As noted above, Richardson testified that Cac-
cavale, with Perala present, told him “you’re fired, you’re not
good for moral on the job, and you’re no longer needed here, to
take my tools, and to leave his equipment and tools there, and
get off the jobsite, and don’t come back here.” Caccavale did
not specifically deny Richardson’s testimony. Richardson’s
testimony is credited. Also, at one point during the trial herein
Caccavale stated that employers would “die” to have someone
of Richardson’s caliber working for them. That being the case,
why did the Respondent fire Richardson? Perala’s explanation
is not credited. It is a fabrication.17 Watson, who according to

16 Additionally, Counsel for General Counsel points out that the Re-
spondent’s own documents, when viewed in conjunction with Perala’s
underlying payroll documents, demonstrate that it rehired and hired a
large number of employees to work at the Marriott jobsite after Solano
was discharged, and hired and rehired numerous employees after the
Marriott job ended.
17 As noted by counsel for General Counsel on brief, the Respon-
dent’s termination documents for Richardson, the change of status
forms, are inconsistent with each other and the Respondent did not even
SKYLINE BUILDERS, INC. 117
Perala, was there at the time, did not testify to corroborate Per-
ala that Richardson threatened Perala with bodily harm. While
according to Perala, he previously disciplined Richardson for
shortcomings in his work performance, there was no documen-
tation to support this allegation. And while according to Perala,
he discussed the shortcomings in Richardson’s work perform-
ance at least three or four different times with Caccavale, Cac-
cavale did not corroborate Perala on this point. If Perala did
discuss on three or four occasions the shortcomings of Richard-
son’s performance while Richardson worked for the Respon-
dent, why did Caccavale at the trial herein state that employers
would “die” to have someone of Richardson’s caliber working
for them? The reasons given by the Respondent do not demon-
strate that there was a business justification for discharging
Richardson, and they do not demonstrate that the Respondent
would have discharged Richardson absent his concerted pro-
tected activity. While there may be a question whether the Re-
spondent knew of Richardson’s union activity, there is no ques-
tion but that the Respondent knew of Richardson’s concerted
protected activity. Richardson spoke with the Respondent’s
management about safety concerns such as insufficient deck-
ing, open elevator shafts, open stairways, and the lack of water
for employees on a hot day. Such concerns on their face in-
volved not only Richardson but the people working on this
jobsite. It was not refuted that employees came to Richardson
and told him about their safety concerns, i.e. the need for rail-
ings in an area, etc., because he was the layout carpenter, and
because, albeit they wanted to take it up with management, they
believed that Richardson was in a better position to get man-
agement to address the employees’ safety concerns. Richard-
son’s testimony that he conveyed the safety concerns of the
employees to management was not refuted. While it was not
made a matter of record whether Richardson specifically told
the Respondent’s management or supervisors that he was acting
for or on behalf of other workers when he complained about
safety concerns, it was obvious from the nature of the safety
complaints that Richardson was not just concerned about his
own well being. Indeed, as noted above, even Perala testified
that Richardson came to him with safety issues involving all
employees probably at safety meetings and at other times. In
view of this, even though Richardson did not bring the other
employees with him on those occasions when he expressed his
safety complaints when he met individually with members of
management, the Respondent had reason to believe that
Richardson was not acting alone. Richardson’s safety com-
plaints were concerted because he consulted with other em-
ployees before he spoke to management and supervisors about
safety concerns, because they involved mutual aid or protec-
tion, and because the Respondent, as pointed out by Perala, was
aware that Richardson—at safety meetings when other employ-
ees were present and at other times when other employees were
not present—was speaking about safety issues involving all
employees. The Respondent has not demonstrated that it would
have discharged Richardson absent his protected concerted

attempt to clear up the inconsistency other than to have Perala testify
that Sickmiller was not a supervisor on the Marriott job.
activity. The Respondent has violated the Act as alleged in
paragraph 6(b) of the complaint.
III. THE OBJECTIONS
As noted above, the Union/Petitioner filed the following ob-
jections to conduct allegedly affecting the results of the elec-
tion:

1. Skyline Builders, Inc., (hereinafter, “the Em-
ployer”), by and through its agents, interfered with, re-
strained, and/or coerced its employees in the exercise of
their rights guaranteed by section 7 of the National Labor
Relations Act, (hereinafter, “the Act”).
2. The Employer, by and through its agents, created an
atmosphere of fear, intimidation and coercion, interfering
with the laboratory conditions necessary for the conduct of
a fair election.
3. The Employer, by and through its agents, intimi-
dated employees by forcing them to wear vote no for the
union T-shirts on the days of the election and to the poll-
ing site, and by threatening them with termination if they
did not wear the vote no T-shirts (sending the message that
they would be terminated if they did not vote against un-
ion).
4. The Employer, by and through its agents, held anti-
union “captive audience” meetings prior to the election.
5. The Employer, by and through its agents, created an
atmosphere of fear, intimidation and coercion, interfering
with the laboratory conditions necessary for the conduct of
a fair election by telling employees that if they voted in the
Union, they would be out of a job by Christmas.
6. The Employer created an atmosphere of fear, in-
timidation and coercion by surveilling employees at the
polling place.
7. The Employer created an atmosphere of fear, in-
timidation and coercion by interrogating employees about
their vote at the polling place and on the days of the elec-
tion.
8. The Employer created an atmosphere of fear, in-
timidation and coercion by stating on the first day of the
election, in front of employees, that it would never hire
anyone that is a union member, nor let a union member
work at Skyline.

The petitioner, with the approval of the Regional Director for
Region 12, withdrew its objection number 9.
The Union/Petitioner did not itself introduce any evidence
with respect to objections. In view of the findings made in this
decision regarding the involved alleged unfair labor practices,
objections 1, 2 and 8 are sustained. They warrant setting the
election aside. The remainder of the objections are overruled.
While Objection 8 refers to “the first day of the election,” the
involved unlawful conduct actually occurred the day before.
IV. THE CHALLENGED BALLOTS
The Board agent conducting the election challenged the bal-
lots of nine individuals because their names, including that of
Richardson, were not on the eligibility list provided by the Em-
ployer. The ballots of nine individuals were challenged by the
Petitioner as not being in the job classifications covered by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
bargaining unit. The ballots of three individuals were chal-
lenged by the Petitioner on the grounds that they are supervi-
sors within the meaning of the Act. And the ballot of one indi-
vidual was challenged by the Employer on the ground that he
was not in the job classification covered by the bargaining unit.
In her Order consolidating cases for hearing and notice of
hearing, which was issued on September 5, 2002, the Regional
Director for Region 12 indicated that an investigation of the
issues raised by the challenged ballots had been conducted, and
based on the conflicting positions of the parties as to the eligi-
bility of the challenged voters, it was her conclusion that the
challenged ballots raise substantial and material factual issues
which can best be resolved at a hearing.
Other than the evidence introduced in the unfair labor prac-
tice proceeding regarding Richardson, no evidence was intro-
duced regarding the challenged ballots.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by interro-
gating employees about their union support and activities, and
by threatening not to hire employees because they supported
the Union and engaged in union activities.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
discharging Mike Solano and David Richardson because they
joined, supported and assisted the Union, and engaged in con-
certed activities, and to discourage employees from engaging in
these activities.
5. The unfair labor practices set forth above are unfair labor
practices affecting commerce within the meaning of Sections
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that Respondent be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the purposes of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from the date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18

18 In the event no exceptions are filed as provided in Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as pro-
vided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objec-
tions thereto shall be deemed waived for all purposes.
ORDER
Skyline Builders, Inc., of Pompano, Florida, its officers,
agents, and representatives shall
1. Cease and desist from
(a) Coercively interrogating any employee about union sup-
port or union activities.
(b) Threatening not to hire employees because they sup-
ported the Union and engaged in union activities.
(c) Discharging or otherwise discriminating against any em-
ployee for supporting United Brotherhood of Carpenters and
Joiners ff America, South Florida Carpenters Regional Council
or any other union.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mike
Solano and David Richardson full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Mike Solano and David Richardson whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the Decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Pompano, Florida and at all of its jobsites in southern
Florida copies of the attached notice marked “Appendix”19
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 12, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SKYLINE BUILDERS, INC. 119
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since late July 2001.
(f) Within 14 days after service by the Region, mail a copy
of the attached notice marked “Appendix” to all employees
who were employed by the Respondent at its Marriott Renais-
sance jobsite in Miami, Florida at any time from the onset of
the unfair labor practices found in this case until the completion
of these employees’ work at that jobsite. The notice shall be
mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that all of the objections, ex-
cept Objections 1, 2, and 8, are overruled.
AND IT IS FURTHER ORDERED that the election con-
ducted inCase 12–RC–8695 be set aside and this matter be
remanded to the Regional Director to take whatever action she
deems appropriate under the circumstances existing here.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we 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 any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting United Brotherhood of Carpenters
and Joiners of America, South Florida Carpenters Regional
Council or any other union.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT threaten not to hire you because you support
United Brotherhood of Carpenters and Joiners of America,
South Florida Carpenters Regional Council and engaged in
union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Or-
der, offer Mike Solano and David Richardson full reinstatement
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Mike Solano and David Richardson whole
for any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of Mike Solano and David Richardson, and WE WILL,
within 3 days thereafter notify the employees in writing that
this has been done and that the discharges will not be used
against them in any way.

SKYLINE BUILDERS, INC.