Tito Contractors, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 2018

366 NLRB No. 47 (N.L.R.B. 2018)

366 NLRB No. 47
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Tito Contractors, Inc. and International Union of
Painters and Allied Trades, AFL–CIO District
Council 51. Cases 05–CA–119008, 05–CA–
119096, 05–CA–119414, 05–CA–123265, 05–CA–
129503, 05–CA–131619, and 05–CA–134285
March 29, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On November 4, 2014, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel and the Respondent both filed exceptions
and a supporting brief. The General Counsel also filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

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). The judge properly based his credibility findings on the
weight of the respective evidence, including the admission or absence
of documentary exhibits, adverse inferences, and uncontested facts.
We have carefully examined the record and find no basis for reversing
the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) by: (1) telling employee Jose Amaya
that he should think about his family before joining an unpaid overtime
lawsuit, telling employee Geremias Berganza that the Respondent
could sue him for defamation and fire him for complaining to the Union
about unpaid overtime wages, telling employees Berganza, Domingo
Zamora, and others that employees participating in the unpaid overtime
lawsuit would not be permitted to work overtime in the future, telling
employee Hernan Latapy that the Respondent “was going to fire all
those son-of-a-bitch after everything finishes with the lawsuit,” and
telling employee Nestor Sanchez that he could get work if he “fix[ed]
it” with the Respondent by withdrawing from the unpaid overtime
lawsuit; (2) informing a group of employees at a mandatory meeting
that workplace issues could be resolved if they voted against the Union,
that prounion employees Mauricio Bautista and Zamora were “rotten
apples,” and that the Respondent could be closed or employees’ work
subcontracted if the Union continued bothering the Respondent; (3)
ordering employee Norbert Araujo to return his company vehicle be-
cause he engaged in union or other protected concerted activities; and
(4) instructing employees not to take complaints outside their “chain of
command” and threatening them with discipline for doing so. Also, in
the absence of exceptions, we adopt the judge’s finding that the Re-
spondent violated Sec. 8(a)(3) and (1) by disciplining and suspending
employee Amaya.
and to adopt the judge’s recommended Order as modified
and set forth in full below.3
1. On October 18, 2013,4 several employees filed a
class action and collective action lawsuit against the Re-
spondent under the Fair Labor Standards Act (FLSA) for
unpaid overtime wages due under State and Federal laws.
The employees also began an organizing campaign with
District Council 51 of the International Union of Painters
and Allied Trades, AFL–CIO (Union). The complaint
alleges that, upon learning of the employees’ actions, the
Respondent committed numerous violations of Section
8(a)(1). The General Counsel excepted to the judge’s
failure to make findings with respect to several of those
allegations. We find merit in seven of these exceptions.
First, we find that Owner and President Maximo
Pierola violated Section 8(a)(1) on October 11, 2013, by
equating employees’ protected activities with disloyalty
towards the Respondent. In particular, Pierola told em-
ployee Geremias Berganza, “[W]hat you guys are, are a
stabber; you guys are stabbing me in my back.” After
Berganza refused to disavow the unpaid overtime lawsuit
when Pierola asked him if he was with or against the
Respondent, Pierola added, “I don’t want stabbers in the
company. If you don’t like my company, if you didn’t
like it, there’s thousands of jobs outside.” See Hialeah
Hospital, 343 NLRB 391, 391 (2004).5
Second, we find that Project Field Superintendent
Manual Alarcon violated Section 8(a)(1) by telling em-
ployee Domingo Zamora that an overtime policy memo
distributed by the Respondent provided that those who
joined an unpaid overtime lawsuit against the Respond-
ent could not work overtime. See Sambo’s Restaurant,
Inc., 260 NLRB 316, 319 (1982) (unlawful threat where
employer told employee that neither he nor his coworker
would work overtime if employee filed a grievance over
the assignment of overtime).
Third, Supervisor Tomas Berganza violated Section
8(a)(1) on October 31, 2013, by creating an impression
of surveillance of employee Aracely Ramos’s union ac-
tivities when, after notifying Ramos of her termination,
Berganza stated, “I noticed that you have been speaking
with Mr. Sandro from the Union. Now that you are with
the Union, call Sandro. Call him to find you a job.” See

2 The judge failed to include in his decision a “Conclusions of Law”
section setting out the specific violations he found. We shall correct
this inadvertent omission.
3 We have amended the remedy and modified the judge’s recom-
mended Order consistent with our legal conclusions. We shall substi-
tute a new notice to conform to the Order as modified.
4 All dates hereinafter are in 2013 unless otherwise indicated.
5 The judge found Pierola’s statements unlawful, but did not specif-
ically address the General Counsel’s contention that the statements
equated protected activities with disloyalty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Flexsteel Industries, 311 NLRB 257, 257 (1993) (em-
ployer unlawfully created an impression of surveillance
of employee’s union activity by telling employee about
hearing of his union activity without revealing the
source).6
Fourth, we find that Supervisor Tomas Berganza vio-
lated Section 8(a)(1) on December 18, 2013, by interro-
gating employees individually about their union activities
and support. See Hudson Neckware, Inc., 302 NLRB 93,
95 (1991) (unlawful interrogation where employer asked
employee if she had signed a union authorization card).
We note that the Respondent does not dispute the judge’s
factual finding that these interrogations occurred.
Fifth, we find that Supervisor Tomas Berganza violat-
ed Section 8(a)(1) on December 18, 2013, by threatening
employees with immigration-related consequences and
discharges for engaging in union activities. On Decem-
ber 2, 2013, construction employee Mauricio Bautista
testified on behalf of the Union at a representation-case
hearing to determine the appropriate unit for a Board
election. According to Berganza, on December 18, dur-
ing a meeting with the recycling center employees, he
distributed and read to the assembled employees one
page from Bautista’s testimony in which Bautista ex-
plained that he picks up the maintenance orders for the
Respondent from the Arlington County Courthouse be-
cause the Respondent “does not have many employees
with papers, I mean good papers. There are approxi-
mately 15 percent of us that have good papers. As a re-

6 In finding this violation, we note that the judge found that Bergan-
za, who disputed Ramos’s account of this conversation, was not a cred-
ible witness generally. The judge relied on that finding to discredit
Berganza’s denial of having told employee Maria Sanchez, at the time
he fired her, that he had heard that she had communications with the
Union. We similarly find it appropriate to rely on the judge’s credibil-
ity finding to reject Berganza’s denial of having told Ramos, during her
termination meeting, that he knew of her communications with the
Union. See Regency at the Rodeway Inn, 255 NLRB 961, 962 (1981)
(although the judge neither ruled on the alleged statutory supervisory
status of an individual nor set out credibility resolutions, he “generally
credited” the testimony of the alleged supervisor and “generally dis-
credited” the testimony of two other witnesses in other respects; given
those circumstances, the Board credited the alleged supervisor’s testi-
mony that she lacked supervisory status over the contrary testimony of
the other two witnesses) (emphasis in original); cf. Newsday, Inc., 274
NLRB 86, 86 fn. 2 (1985) (finding that although the judge did not
specifically rule on an alleged threat made by a supervisor to an em-
ployee, the supervisor’s denial of threatening an employee was credible
because the judge had found the supervisor to be a “generally reliable”
witness and discredited the employee’s testimony when it conflicted
with the supervisor’s).
Member Emanuel does not pass on this allegation. He notes that an-
other witness, whose testimony the judge did not address, corroborated
Berganza’s denial. In these circumstances, he finds the judge’s credi-
bility resolutions insufficient to determine whether Berganza actually
made the allegedly unlawful statement to Ramos.
sult, I am sent to the Arlington County Courthouse.”
Recycling center employee Elcy Bargas testified that
Berganza told employees during the meeting, referring to
U.S. Immigration and Customs Enforcement by the ac-
ronym ICE, that the high percentage of undocumented
workers employed by the Respondent “will affect us be-
cause Tito Contractors would give our information to
ICE. Then in case the Union will win, ICE will come
into the company and they will get us arrested.” Similar-
ly, recycling center employee Maria Guerra testified that
Berganza told the employees that “[i]f the Union wins,
then ICE will go into the office, and they will check the
papers” and those without papers would lose their job.
See North Hills Office Services, 346 NLRB 1099, 1102
(2006) (“[T]hreats involving immigration or deportation
can be particularly coercive. Such threats place in jeop-
ardy not only the employees' jobs and working condi-
tions, but also their ability to remain in their homes in the
United States.”).7
Sixth, we find that Owner and President Maximo
Pierola violated Section 8(a)(1) on February 27, 2014, by
soliciting employees’ grievances, indicating that they
could be resolved through private mediation, and, after
employee Norberto Araujo interjected that Pierola had
made empty offers about resolving employee grievances
for the past 25 years, promising that this would change.
See ManorCare Health Services-Easton, 356 NLRB 202,
202 fn. 3, 220 (2010) (employer unlawfully solicited
grievances and expressly promised to remedy them dur-
ing an organizational campaign), enfd. 661 F.3d 1139
(D.C. Cir. 2011). Araujo, whom the judge found credi-
ble in other respects, testified without contradiction that
Pierola told the employees that the private mediator
could be used to discuss their unpaid overtime claims
and that employees therefore would not need to support
the Union. Hernan Latapy similarly testified that Pierola
said that “we did not need the Union in order to reach an
agreement with them, that we could find a mediator in
order to resolve the internal problems.” We note that the
Respondent does not dispute the judge’s factual finding
that Pierola made these statements about employees’
grievances.

7 Berganza denied telling the recycling center employees that they
would have problems with ICE if they voted for the Union. We find
the judge’s finding that Berganza was not a credible witness generally
to be a sufficient basis for resolving the conflicting accounts. Moreo-
ver, even if we were to rely solely on Berganza’s own testimony, the
employees reasonably understood the Respondent’s message that im-
migration-related consequences would result from engaging in union
activities. After all, as the judge found, Berganza distributed and read
Bautista’s testimony about employees’ precarious immigration status
on the same day he had interrogated employees about their union sup-
port.
TITO CONTRACTORS, INC. 3
Seventh, we find that Owner and President Pierola vio-
lated Section 8(a)(1) on February 27, 2014, by disparag-
ing employee Jose Amaya at an employee meeting. At
that meeting, Amaya asked Pierola whether another em-
ployee had been fired because she supported the Union.
Pierola then singled out Amaya as a friend of employee
Mauricio Bautista (whom Pierola had just called a “rot-
ten apple” for supporting the Union), became suspicious
that Amaya was recording the meeting, and called Ama-
ya a “maricon” (faggot). See Milkin Enterprises, 361
NLRB 283, 290 (2014) (employer unlawfully encour-
aged the dissemination of a disparaging picture of proun-
ion employee).8
2. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) by promulgating and discriminatorily
enforcing an overtime policy requiring employees to
obtain advance management approval for overtime be-
cause of employees’ union and other protected concerted
activities. We agree.
Prior to October 2013, the Respondent’s employees
routinely worked overtime without advance management
approval. On October 24, 6 days after the employees
filed the overtime lawsuit, the Respondent distributed a
memo to employees setting forth its overtime policy,
which, for the first time, required employees to receive
advance management approval for overtime.9 The next
day, October 25, Owner and President Pierola held a
mandatory employee meeting during which he expressed
surprise about the overtime lawsuit and stated that he
would now need to cut employees’ hours. Following the

8 The General Counsel also excepts to the judge’s failure to find that
the Respondent violated Sec. 8(a)(1) by conveying to employees that
unionization would be futile when Supervisor Tomas Berganza told
employee Elcy Bargas, using a coffee pot as a prop, “pretend that [the
Respondent’s] money was inside that pot of coffee . . . the Union can-
not go and grab that money in order to increase” employees’ wages.
We find insufficient evidence in the record to establish this violation
and dismiss the allegation. We find it unnecessary to pass on the Gen-
eral Counsel’s exceptions to the judge’s failure to find additional coer-
cive interrogations or his failure to find that the Respondent, through
Pierola, violated Sec. 8(a)(1) by implicitly threatening to withhold
employee benefits on April 28, 2014. Those additional violations
would be cumulative and would not affect the remedy.
9 The Respondent asserts that this overtime policy was in effect prior
to the filing of the overtime lawsuit, but was enforced only sporadical-
ly. As the judge found, however, there is no evidence that any employ-
ees had been informed that such a policy existed prior to the filing of
the lawsuit. To the contrary, multiple employees testified that the Re-
spondent had not previously notified them that there was an overtime
policy and that they regularly worked overtime without receiving man-
agement approval. Moreover, the Respondent’s office manager, Davys
Ramos, testified that it was only after October 24 that the Respondent
required employees to submit a work authorization form in which a
management official authorizes an employee to work a specific amount
of overtime. The Respondent has accordingly failed to show that it had
an overtime policy prior to October 2013.
meeting, however, Pierola told employee Norberto
Araujo that nothing would change with respect to his
overtime hours because he had not joined the lawsuit.
Also that same day, the Respondent’s project superinten-
dent, Manual Alarcon, informed employee Domingo
Zamora that the Respondent’s overtime policy memo
“says that those of you that are in the lawsuit cannot
work” overtime. In addition, on separate occasions
throughout October 2013, Respondent Field Superinten-
dent Fermin Rodriguez told employees Zamora, Geremi-
as Berganza, and Hernan Latapy, with other employees
present, that the new overtime policy applied only to
those who joined the lawsuit.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), in order to establish a violation of Section
8(a)(3), the General Counsel must first show that the
Respondent’s action was motivated by animus against
protected activity. If he makes that showing, the Re-
spondent has the burden of showing that it would have
taken the same action even absent the protected activity.
The General Counsel has unquestionably met his ini-
tial burden here. The quoted statements by management
officials, made to employees when the new policy was
promulgated and thereafter, establish that the underlying
discriminatory purpose behind the policy was to retaliate
against those employees who participated in the lawsuit.
It thus became the Respondent’s burden to establish that
it would have issued the new overtime policy even ab-
sent its intent to retaliate against the employees for filing
the overtime lawsuit. In order to meet that burden, the
Respondent cannot simply “present a legitimate reason
for its actions,” but must instead prove that the actions
were “‘predicated solely on those grounds, and not by a
desire to discourage [protected] activity.’” Toll Mfg. Co.,
341 NLRB 832, 847 (2004), quoting NLRB v. Symons
Mfg. Co., 328 F.2d 835, 837 (7th Cir. 1964); see, e.g.,
Key Food, 336 NLRB 111, 112 (2001); W. F. Bolin Co.,
311 NLRB 1118, 1119 (1993), review denied 70 F.3d
863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir.
1996).
The Respondent contends that it issued the new over-
time policy solely for the lawful purpose of reducing its
future liability for overtime pay. As already noted, the
Respondent’s contemporaneous statements to employees
show that the new policy was formulated and issued for
the sole purpose of punishing Section 7 activity. In addi-
tion, by telling employees that it would only apply the
new policy to participants in the lawsuit, the Respondent
negated any possible inference that its only purpose was
for a legitimate reason—to reduce its overtime liability.
Had that been the objective, employees would have been
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
told that the policy applied to all of them. And, as ex-
plained below, the Respondent in fact did not apply the
policy to all of them.
In sum, the evidence shows that, even though the Re-
spondent’s written overtime policy was facially valid, the
Respondent promulgated it for the unlawful purpose of
retaliating against those employees who engaged in un-
ion and other protected concerted activities by participat-
ing in the overtime lawsuit. See Youville Health Care
Center, Inc., 326 NLRB 495, 495 (1998) (presumptively
valid rule unlawful if adopted for a discriminatory pur-
pose).10 The Respondent has accordingly not met its
Wright Line burden.11
Our finding here does not suggest that an employer
could never lawfully respond to an FLSA lawsuit by is-
suing a policy limiting employees’ unauthorized over-
time work. Such a policy, if motivated solely by legiti-
mate business concerns, would be lawful. Here, howev-
er, the Respondent’s own statements and actions reveal
instead that its overriding motivation was unlawful ani-
mus against Section 7 activity, not reducing its overtime
exposure. The Respondent’s promulgation of its new
policy therefore violated Section 8(a)(3).12
We also find that the Respondent, true to its word, dis-
criminatorily enforced the overtime policy by refusing to
authorize overtime for employees who joined the over-
time lawsuit. During the first full pay period after the
filing of the overtime lawsuit, the Respondent assigned
overtime to various employees, but none to the original
seven, named plaintiffs.13 This was in stark contrast to
the six pay periods immediately preceding the filing of
the lawsuit, from July 14 through October 5, when the

10 See also Bigg’s Foods, 347 NLRB 425, 425 & fn. 6 (2006) (simi-
lar); Lincoln Center for the Performing Arts, 340 NLRB 1100, 1110–
1111 (2003) (similar); Ward Mfg., Inc., 152 NLRB 1270, 1271 (1965).
11 Given the Respondent’s statements to its employees, the violation
may be found here without a Wright Line analysis. Where an employer
takes adverse action against employees for the explicit purpose of retal-
iating against their protected activity, further analysis of its motive for
the action is unnecessary. E.g., Neff-Perkins Co., 315 NLRB 1229,
1229 fn. 2 (1994) (unnecessary to apply Wright Line where employer
admits to discriminating against employees because of their protected
activity); Mast Advertising & Publishing, 304 NLRB 819, 819–820
(1991) (same). It is sufficient, however, for us to find that the Respond-
ent’s motive in this case was unlawful under Wright Line.
12 Member Emanuel agrees that the Respondent’s promulgation of
the new overtime policy violated Sec. 8(a)(3) and (1). Although the
Respondent is directed to rescind that policy, this does not preclude it
from establishing a new overtime policy that is genuinely intended to
assist it in avoiding violations of the FLSA and is not used to deny
overtime opportunities against employees who engage in protected
activity.
13 The original seven named plaintiffs to the overtime lawsuit were
Roberto Ayala, Mauricio Bautista, Geremias Berganza, Hector Delga-
do, Sabino Diaz, Jose Jimenez, and Domingo Zamora.
seven discriminatees were assigned an average of at least
10 hours of overtime per pay period, with a few working
substantially more. Moreover, as the judge found, the
Respondent did not lack overtime work during the pay
period ending on November 2. The seven employees
who were assigned overtime during that pay period
worked a significant number of overtime hours. Fur-
thermore, the evidence demonstrates that the Respondent
also discriminated against other employees who it sus-
pected would join—and just a few weeks later did join—
the overtime lawsuit.14 Tellingly, in addition to the dis-
parate treatment evinced by the Respondent’s payroll
records, the Respondent’s Vice President Alexander
Pierola was unable to explain at the hearing why the Re-
spondent suddenly shifted the overtime hours of the
plaintiffs in the lawsuit to other employees who had not
joined the lawsuit.15

14 The General Counsel excepts to the judge’s failure to find that the
Respondent discriminatorily enforced its overtime policy against em-
ployees Jose Amaya, Jose Diaz, Luis Palacios, Hernan Latapy, and
Nestor Sanchez, all of whom joined the lawsuit on November 13. We
find merit in this exception. The payroll records show that the Re-
spondent significantly reduced the overtime hours of each of these
employees. For instance, over the six pay periods prior to the lawsuit,
their average overtime worked per pay period was as follows: Amaya,
9.29 hours, Diaz, 5.13 hours, Palacios, 26.29 hours, Latapy, 26.92
hours, and Sanchez, 9.71 hours. Over the six pay periods after the
filing of the lawsuit, the average overtime were: Amaya and Diaz, 0
hours, Latapy, 1 hour, and Sanchez, 2.5 hours. Although Palacios
worked a total of 33 overtime hours during the next four pay periods,
thereby averaging 8.25 hours per pay period, that was still substantially
less than his average, over the six preceding pay periods, of 26.29 hours
of overtime per pay period. Once they joined the lawsuit, nearly 4
weeks after it was first filed, these five employees, like the seven initial
plaintiffs, immediately saw a sharp decline in their overtime hours.
The evidence further supports a finding that the reduction in hours was
similarly motivated by the Respondent’s hostility toward their in-
volvement in the overtime lawsuit. For instance, upon learning that
Amaya was one of the employees who had initially met with the attor-
neys filing the lawsuit, Pierola bluntly and unlawfully warned Amaya
to think about his family before joining the lawsuit. Moreover, the
Respondent knew that these employees had previously engaged in
protected activities. In 2012, Sanchez, Palacios, Latapy, and Diaz all
worked together on a construction project at the Mount Pleasant library
in Washington, D.C., for which the Respondent did not pay them the
correct wage rate. At that time, Sanchez and Palacios complained
about the underpayment and the Respondent terminated them. The
Respondent rehired Sanchez and Palacios only after they contacted the
Union, which in turn spoke on their behalf with Respondent General
Manager Kenneth Brown.
15 The judge noted that the evidence suggested that the discriminato-
ry withholding of overtime did not stop after the first full pay period
following the filing of the overtime lawsuit. We agree with the judge
that the evidence shows continued discrimination against the initial
seven plaintiffs after the first pay period, as well as Amaya, Diaz, Pala-
cios, Latapy, and Sanchez. We leave to compliance the determination
of the extent to which the Respondent discriminated against the plain-
tiffs in subsequent pay periods.
TITO CONTRACTORS, INC. 5
We also find that the Respondent separately violated
Section 8(a)(1) by disciplining employees for working
overtime without advance management approval pursu-
ant to the Respondent’s discriminatory overtime policy.
For instance, employee Norberto Araujo consented to
joining the lawsuit on February 10, 2014, and on Febru-
ary 27 expressed dismay to Vice President Pierola about
the Respondent not having resolved employee grievances
over the past 25 years. On February 28, the Respondent
disciplined Araujo for working overtime without advance
management approval, despite Araujo having done so
repeatedly in the past without discipline. The Respond-
ent also issued written warnings to other unnamed em-
ployees for not receiving advance management approval
prior to working overtime.16
3. We affirm the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) by encouraging Mary-
land Environmental Services (MES) to remove and re-
quire the termination of recycling center employees Ma-
ria Sanchez on October 30, Aracely Ramos on October
31, Reyna Sorto on November 14, Yasmin Ramirez on
December 6, and Maria Chavez on December 13. Ap-
plying Wright Line, above, the judge found that the Re-
spondent terminated these five employees because of
their union and other protected concerted activities.17 On
exception, the Respondent disputes the judge’s findings
that it knew of Sanchez’, Ramos’, and Sorto’s union and
other protected concerted activities and harbored union
animus against them. The Respondent also contends that
the terminations were for legitimate performance and
behavior issues. We disagree.
The judge properly imputed Supervisor Berganza’s
undisputed knowledge of Sanchez’, Ramos’, and Sorto’s

16 The judge incorrectly stated that Araujo’s discipline was not pled
as a violation. Paragraph 17 of the complaint alleged that the Respond-
ent issued written and/or oral warnings for violating the overtime policy
to employees whose identities were unknown at the time of the filing of
the complaint, which would include Araujo’s February 28, 2014 disci-
pline. Moreover, we shall order the Respondent to rescind the unlawful
disciplines issued to Araujo and other unnamed employees for violating
the discriminatory overtime policy. See National Steel Supply, Inc.,
344 NLRB 973, 977 fn. 16 (2005) (unnamed discriminatees entitled to
make-whole relief where the General Counsel has alleged and proven
discrimination against a defined and easily identifiable class of em-
ployees), enfd. 207 Fed.Appx. 9 (2d Cir. 2006). The identity of those
employees shall be ascertained at the compliance stage. Id.
17 Contrary to the judge’s suggestion, proving that an employee’s un-
ion activity was a motivating factor in the employer's adverse employ-
ment decision does not require the General Counsel to show particular-
ized animus towards the employee’s own union activity. The elements
commonly required to support a finding of discriminatory motivation
are union activity by the employee, employer knowledge of the activity,
and union animus on the part of the employer. See Libertyville Toyota,
360 NLRB 1298, 1301 fn. 10 (2014), enfd., 801 F.3d 767 (7th Cir.
2015); Mesker Door, Inc., 357 NLRB 591, 592 & fn. 5 (2011).
union activity to the Respondent.18 The judge also ap-
propriately based his finding of animus on the “Respond-
ent’s obvious discrimination against several of its proun-
ion employees,” which includes numerous simultaneous
8(a)(1) and (3) violations. Moreover, in agreement with
the judge, we reject the Respondent’s purported explana-
tions for the employees’ terminations. The performance
and behavior issues cited by the Respondent as the rea-
sons for the terminations were pretextual, as evidenced
by the Respondent’s disparate treatment of those em-
ployees. For instance, although the Respondent issued
multiple warnings to other employees about the need to
improve their performance, Sanchez, Ramos, and Sorto
were summarily terminated for purported inadequate
work performance. Not only was there no credited evi-
dence to support this, but Ramos and Sorto performed
the best on a productivity test conducted by the Re-
spondent at their facility. Similarly, although Ramirez
and Chavez were each purportedly discharged for a one-
time negative interaction with another employee, neither
received a warning for such misbehavior or for any other
deficiency. The Respondent, however, warned another
employee about her inappropriate behavior, including
physical abuse of coworkers, on repeated occasions, and
eventually terminated her only for job abandonment.
We note, however, that although the judge properly
applied Wright Line in determining that the Respondent’s
terminations of Sorto, Ramirez, and Chavez were unlaw-
fully motivated, it was unnecessary for him to apply that
analysis with respect to the terminations of Sanchez and
Ramos. As previously noted, Supervisor Berganza ex-
plicitly referenced their union activities when terminating
them. Immediately before he fired Sanchez, Berganza
told her that he had heard that she had been talking to the
Union. Likewise, when Ramos asked why she was being
fired, Berganza told her that he noticed she had been
speaking with the Union, and that she could call the Un-
ion to find her a new job. These direct statements con-
necting Sanchez’ and Ramos’ terminations to their union
activity are independently sufficient to demonstrate un-
lawful discrimination. See Quality Control Electric,
Inc., 323 NLRB 238, 238 (1997) (employer statement to

18 Berganza initially supported the Union, but the judge found, based
in part on credibility determinations, that Berganza began opposing the
Union prior to Sanchez’ October 30 termination. The judge also found
that Berganza “at least suspected that all five discriminatees supported
the Union before they were discharged.” Indeed, when he terminated
Sanchez, Berganza told her he had been informed that she “had com-
munication with the Union.” He similarly told Ramos that he knew she
had been speaking with the Union when he fired her and made com-
ments about the Union to Sorto at her termination meeting. The Re-
spondent does not dispute that it knew of Ramirez’s and Chavez’ union
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
prospective applicant about his union membership con-
stituted affirmative evidence of unlawful motivation that
was “more than Wright Line requires” to establish unlaw-
ful motive); District #1, Pacific Coast District, Marine
Engineers Beneficial Association, 259 NLRB 1258, 1258
fn. 2 (1982) (employer statements to employee at time of
discharge about her union activity establish unlawful
discharge), enfd. 723 F.2d 97 (D.C. Cir. 1983).
4. We also affirm the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by laying off
construction employees Hernan Latapy and Nestor
Sanchez on April 25, 2014, and terminating Latapy on
June 25, 2014. The Respondent knew that Latapy and
Sanchez supported the Union and were plaintiffs in the
overtime lawsuit. On May 1, 2014, Field Superintendent
Rodriguez told Latapy that there was work for him as a
subcontractor if he disassociated himself from the law-
suit. Rodriguez implored Latapy “not to be a fool” and
“lose that opportunity” because “at the end, when the
lawsuit ends, [Pierola is] going to fire all those sons-of-a-
bitches from the company.” Although Project Superin-
tendent Alarcon texted Latapy about a work assignment
in June 2014, Latapy testified that he understood that this
was an attempt by the Respondent to give him work as a
subcontractor. The Respondent never contacted Latapy
about returning to his former position as an employee.
Also in June 2014, Field Superintendent Rodriguez told
Sanchez that that there was plenty of work for Sanchez
but that he should go “fix it with [Pierola] or with the
lawyers” regarding the lawsuit. Sanchez responded that
he had nothing to discuss with the Respondent’s lawyers,
and the Respondent never contacted him again about
working on any future projects despite Sanchez’ repeated
efforts to obtain work. The judge properly found that
Rodriguez’ statements alone constituted evidence of dis-
crimination against Latapy and Sanchez. We note again,
however, that the judge’s application of Wright Line was
unnecessary here as well, because the Respondent explic-
itly linked the employees’ union and other protected ac-
tivities to its withholding of their future work assign-
ments and ultimately to their termination or layoff. See
Quality Control Electric, Inc., above; District #1, Pacific
Coast District, Marine Engineers Beneficial Association,
above.19

19 Member Emanuel agrees that the Respondent violated Sec. 8(a)(1)
by laying off Latapy and Sanchez and terminating Latapy for initiating
and participating in the FLSA lawsuit. He finds it unnecessary to pass
on whether the Respondent’s conduct also violated Sec. 8(a)(3) because
finding this additional violation is cumulative and does not affect the
remedy.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District Council 51, International Union of Painters
and Allied Trades, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By telling employee Jose Amaya that he should
think about his family before engaging in protected con-
certed activities because he joined the unpaid overtime
lawsuit, the Respondent violated Section 8(a)(1) of the
Act.
4. By equating employee Geremias Berganza’s pro-
tected concerted activities with disloyalty towards the
Respondent, the Respondent violated Section 8(a)(1) of
the Act.
5. By threatening employees Domingo Zamora, Ger-
emias Berganza, and others that the Respondent would
not permit employees participating in the unpaid over-
time lawsuit to work overtime in the future, the Re-
spondent violated Section 8(a)(1) of the Act.
6. By telling employee Domingo Zamora that, under
the overtime policy memo distributed by the Respondent,
those who joined the overtime lawsuit against the Re-
spondent cannot work overtime, the Respondent violated
Section 8(a)(1) of the Act.
7. By threatening to discipline employees who took
complaints outside their “chain of command,” the Re-
spondent violated Section 8(a)(1) of the Act.
8. By creating an impression of surveillance of em-
ployee Aracely Ramos’s union activities, the Respondent
violated Section 8(a)(1) of the Act.
9. By interrogating employees individually about their
union activities and support, the Respondent violated
Section 8(a)(1) of the Act.
10. By telling a group of employees at a mandatory
meeting that their workplace issues could be resolved if
they voted against the Union, that prounion employees
Mauricio Bautista and Domingo Zamora are “rotten ap-
ples,” and that it could close or subcontract employees’
work if the Union continued bothering it, the Respondent
violated Section 8(a)(1) of the Act.
11. By threatening employees with immigration-
related consequences and discharges for engaging in un-
ion activities, the Respondent violated Section 8(a)(1) of
the Act.
12. By soliciting employees’ grievances and promis-
ing to no longer disregard them, the Respondent violated
Section 8(a)(1) of the Act.
13. By disparaging employee Jose Amaya during a
meeting for his support of the Union, the Respondent
violated Section 8(a)(1) of the Act.
TITO CONTRACTORS, INC. 7
14. By disciplining employee Norberto Araujo and
others pursuant to its discriminatory overtime policy, the
Respondent violated Section 8(a)(1) of the Act.
15. By threatening employee Geremias Berganza that
the Respondent could sue him for defamation and fire
him for complaining to the Union about unpaid overtime
wages, the Respondent violated Section 8(a)(1) of the
Act.
16. By ordering employee Norbert Araujo to return
his company vehicle because he engaged in union or
other protected concerted activities, the Respondent vio-
lated Section 8(a)(1) of the Act.
17. By telling employee Hernan Latapy that the Re-
spondent “was going to fire all those son-of-a-bitch after
everything finishes with the [overtime] lawsuit,” the Re-
spondent violated Section 8(a)(1) of the Act.
18. By telling employee Nestor Sanchez that he could
get work if he “fix[ed] it” with the Respondent by with-
drawing from the overtime lawsuit, the Respondent vio-
lated Section 8(a)(1) of the Act.
19. By promulgating and discriminatorily enforcing
an overtime policy against employees Roberto Ayala,
Mauricio Bautista, Geremias Berganza, Hector Delgado,
Sabino Diaz, Jose Jimenez, Jose Amaya, Jose Diaz,
Hernan Latapy, Luis Palacios, Nestor Sanchez, and Do-
mingo Zamora because of their union or other protected
concerted activities, the Respondent violated Section
8(a)(3) and (1) of the Act.
20. By discharging, laying off, or otherwise discrimi-
nating against employees Maria Sanchez, Aracely Ra-
mos, Reyna Sorto, Yasmin Ramirez, Maria Chavez,
Hernan Latapy, Nestor Sanchez, and Mauricio Bautista
because of their union or other protected concerted activ-
ities, the Respondent violated Section 8(a)(3) and (1) of
the Act.
21. By encouraging Maryland Environmental Services
to request removal of employees from a jobsite because
the employees engaged in union or other protected con-
certed activities, the Respondent violated Section 8(a)(3)
and (1) of the Act.
22. By disciplining and suspending employee Jose
Amaya because he engaged in union or other protected
concerted activities, the Respondent violated Section
8(a)(3) and (1) of the Act.
23. The above violations are unfair labor practices that
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order the Respondent to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Having
found that the Respondent committed numerous viola-
tions of Section 8(a)(1) of the Act, we shall order the
Respondent to cease and desist from engaging in such
conduct.
Having found that the Respondent violated Section
8(a)(3) and (1) by promulgating and discriminatorily
enforcing an overtime policy against employees because
they engaged in union or protected concerted activities,
including participating in a collective-action lawsuit, we
shall order the Respondent to make Roberto Ayala, Mau-
ricio Bautista, Geremias Berganza, Hector Delgado,
Sabino Diaz, Jose Jimenez, Jose Amaya, Jose Diaz,
Hernan Latapy, Luis Palacios, Nestor Sanchez, and Do-
mingo Zamora whole for any loss of earnings and other
benefits suffered as a result of the unlawfully withheld
overtime. Backpay shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). We shall
also order the Respondent to rescind its unlawful over-
time policy requiring advance management approval and
notify its employees in writing that it has done so. In
addition, we shall order the Respondent to remove from
its files any reference to the unlawful discipline taken
against Norberto Araujo and any other employees who
were disciplined pursuant to its discriminatory overtime
policy and notify them in writing that it has done so and
that any such discipline will not be used against them in
any way.
Having found that the Respondent violated Section
8(a)(3) and (1) by laying off and/or terminating employ-
ees Maria Sanchez, Aracely Ramos, Reyna Sorto, Yas-
min Ramirez, Maria Chavez, Hernan Latapy, Nestor
Sanchez, and Mauricio Bautista because of their union
and other protected concerted activities, we shall order
the Respondent to offer them immediate reinstatement to
their former jobs, or if those jobs no longer exist, to a
substantially equivalent position, without prejudice to
their seniority or any other rights and privileges previ-
ously enjoyed. We shall also order the Respondent to
make Maria Sanchez, Aracely Ramos, Reyna Sorto,
Yasmin Ramirez, Maria Chavez, Hernan Latapy, Nestor
Sanchez, and Mauricio Bautista whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, above, compounded daily as prescribed
in Kentucky River Medical Center, above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Having found that the Respondent violated Section
8(a)(3) and (1) by suspending employee Jose Amaya for
engaging in union or protected concerted activities, we
shall order the Respondent to make him whole for any
loss of earnings and other benefits suffered as a result of
the unlawful suspension. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, above, compounded daily as prescribed
in Kentucky River Medical Center, above.
In accordance with our recent decision in King Soop-
ers, Inc., 364 NLRB No. 93 (2016), we shall also order
the Respondent to compensate affected employees for
their search-for-work and interim employment expenses
regardless of whether those expenses exceed interim
earnings. Search-for-work and interim employment ex-
penses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.
In addition, in accordance with our decision
in AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), we shall order the Respondent to compensate all
of the discriminatees for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file
with the Regional Director for Region 5, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar year for each em-
ployee.
ORDER
The National Labor Relations Board orders that the
Respondent, Tito Contractors, Washington, D.C., its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminat-
ing against employees for supporting District Council 51,
International Union of Painters and Allied Trades, AFL–
CIO, or any other labor organization, or for engaging in
other protected concerted activities, including participat-
ing in a collective-action lawsuit.
(b) Encouraging Maryland Environmental Services to
request removal of employees from a jobsite because the
employees engaged in union or other protected concerted
activities.
(c) Threatening employees with discharge, closure of
their work facility or subcontracting of their work, filing
a defamation lawsuit against them, withholding of over-
time and other benefits, or any other adverse actions if
they engage in union or other protected concerted activi-
ties, including participating in a collective-action lawsuit.
(d) Promulgating a policy requiring high-level man-
agement advance approval of overtime work in response
to employees engaging in protected concerted activities,
and discriminatorily enforcing such a policy.
(e) Disciplining employees for engaging in union or
other protected concerted activities, including participat-
ing in a collective-action lawsuit.
(f) Equating employees’ protected concerted activi-
ties, including participating in a collective-action lawsuit,
with disloyalty.
(g) Maintaining a rule which prohibits employees
from taking complaints about their working conditions
outside their “chain of command.”
(h) Creating an impression of surveillance of employ-
ees’ union or other protected concerted activities.
(i) Coercively interrogating employees about their un-
ion or other protected concerted activities.
(j) Threatening employees with immigration-related
consequences, including discharge, for engaging in union
activities.
(k) Soliciting grievances from employees and promis-
ing to remedy them in order to discourage employees
from supporting the Union.
(l) Disparaging employees to their coworkers for en-
gaging in union or other protected concerted activities.
(m) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order,
offer Maria Sanchez, Aracely Ramos, Reyna Sorto,
Yasmin Ramirez, Maria Chavez, Hernan Latapy, Nestor
Sanchez, and Mauricio Bautista full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Within 14 days from the date of the Board’s Or-
der, notify Maryland Environmental Services in writing
that it requests the reinstatement of Maria Sanchez, Ara-
cely Ramos, Reyna Sorto, Yasmin Ramirez, and Maria
Chavez to their former jobs at its Shady Grove (Der-
wood), Maryland facility or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(c) Make Maria Sanchez, Aracely Ramos, Reyna Sor-
to, Yasmin Ramirez, Maria Chavez, Hernan Latapy, Nes-
tor Sanchez, Mauricio Bautista, and Jose Amaya whole
for any loss of earnings and other benefits suffered as a
TITO CONTRACTORS, INC. 9
result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(d) Within 14 days from the date of the Board’s Or-
der, remove from its files any reference to the unlawful
discharges and discipline of Maria Sanchez, Aracely
Ramos, Reyna Sorto, Yasmin Ramirez, Maria Chavez,
Hernan Latapy, Nestor Sanchez, and Mauricio Bautista,
and within 3 days thereafter, notify them in writing that
this has been done and that their unlawful discharges and
disciplines will not be used against them in any way.
(e) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful sus-
pension and discipline of Jose Amaya, and within 3 days
thereafter, notify him in writing that this has been done
and that the suspension and discipline will not be used
against him in any way.
(f) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful disci-
pline of Norberto Araujo and any other employees disci-
plined pursuant to its discriminatory overtime policy, and
within 3 days thereafter, notify them in writing that this
has been done and that any such discipline will not be
used against them in any way.
(g) Make Roberto Ayala, Mauricio Bautista, Geremias
Berganza, Hector Delgado, Sabino Diaz, Jose Jimenez,
Jose Amaya, Jose Diaz, Hernan Latapy, Luis Palacios,
Nestor Sanchez, and Domingo Zamora whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them in having overtime hours
withheld, in the manner set forth in the remedy section of
this decision.
(h) Compensate affected employees for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file with the Regional Director for Re-
gion 5, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
(i) Rescind the overtime policy requiring advance
management approval of overtime work and notify em-
ployees in writing that it has done so.
(j) Rescind the rule prohibiting employees from taking
complaints about their working conditions outside their
“chain of command” and notify employees in writing
that it has done so.
(k) Within 14 days from the date of the Board’s Or-
der, restore to Norberto Araujo the use of a company
vehicle comparable to the vehicle he drove prior to April
2014.
(l) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(m) Within 14 days after service by the Region, post
at its Washington, D.C. office and the Shady Grove
(Derwood), Maryland recycling facility, copies of the
attached notice marked “Appendix” in both English and
Spanish.20 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on the intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. 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 Re-
spondent shall duplicate and mail, as its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 11, 2013.
(n) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance of
employees, at which time the attached notice is to be read
to employees in English, Spanish, and in any additional
languages, if the Regional Director decides that it is ap-
propriate to do so, by a responsible management official
in the presence of a Board agent and an agent of the Un-
ion if the Region or the Union so desires, or, at the Re-
spondent’s option, by a Board agent in the presence of a
responsible management official and, if the Union so
desires, an agent of the Union.
(o) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

20 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Dated, Washington, D.C. March 29, 2018
Mark Gaston Pearce, Member
Lauren McFerran, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, lay off, or otherwise discrim-
inate against you for supporting District Council 51, In-
ternational Union of Painters and Allied Trades, AFL–
CIO, or any other union, or for engaging in other protect-
ed concerted activities, including participating in a col-
lective-action lawsuit.
WE WILL NOT encourage Maryland Environmental
Services to request your removal from a jobsite because
you engaged in union or other protected concerted activi-
ties.
WE WILL NOT threaten you with discharge, closure of
your work facility or subcontracting of your work, filing
a defamation lawsuit against you, withholding of over-
time and other benefits, or any other adverse actions if
you engage in union or other protected concerted activi-
ties, including participating in a collective-action lawsuit.
WE WILL NOT promulgate a policy requiring high-level
management advance approval of overtime work in re-
sponse to you engaging in protected concerted activities,
and discriminatorily enforcing such a policy.
WE WILL NOT discipline you for engaging in union or
other protected concerted activities, including participat-
ing in a collective-action lawsuit.
WE WILL NOT equate your protected concerted activi-
ties, including participating in a collective-action lawsuit,
with disloyalty.
WE WILL NOT maintain a rule which prohibits you
from taking complaints about your working conditions
outside your “chain of command.”
WE WILL NOT create the impression that we are sur-
veilling your union or other protected concerted activi-
ties.
WE WILL NOT coercively interrogate you about your
union or other protected concerted activities.
WE WILL NOT threaten you with immigration-related
consequences, including discharge, for engaging in union
activities.
WE WILL NOT solicit grievances from you and promise
to remedy them in order to discourage you from support-
ing the Union.
WE WILL NOT disparage you to your coworkers for en-
gaging in union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Maria Sanchez, Aracely Ramos, Reyna Sor-
to, Yasmin Ramirez, Maria Chavez, Hernan Latapy, Nes-
tor Sanchez, and Mauricio Bautista full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
WE WILL, within 14 days from the date of the Board’s
Order, notify Maryland Environmental Services in writ-
ing that we request the reinstatement of Maria Sanchez,
Aracely Ramos, Reyna Sorto, Yasmin Ramirez, and Ma-
ria Chavez to their former jobs at its Shady Grove (Der-
wood), Maryland facility or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Maria Sanchez, Aracely Ramos, Reyna
Sorto, Yasmin Ramirez, Maria Chavez, Hernan Latapy,
Nestor Sanchez, Mauricio Bautista, and Jose Amaya
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, less any
net interim earnings, plus interest, and WE WILL also
make such employees whole for reasonable search-for-
work and interim employment expenses, plus interest..
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
TITO CONTRACTORS, INC. 11
ful discharges and discipline of Maria Sanchez, Aracely
Ramos, Reyna Sorto, Yasmin Ramirez, Maria Chavez,
Hernan Latapy, Nestor Sanchez, and Mauricio Bautista,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that their
unlawful discharges and disciplines will not be used
against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discipline of Jose Amaya, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension and discipline
will not be used against him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline of Norberto Araujo and any other employ-
ees disciplined pursuant to our discriminatory overtime
policy, and WE WILL, within 3 days thereafter, notify each
of them in writing that this has been done and that any
such discipline will not be used against them in any way.
WE WILL make Roberto Ayala, Mauricio Bautista,
Geremias Berganza, Hector Delgado, Sabino Diaz, Jose
Jimenez, Jose Amaya, Jose Diaz, Hernan Latapy, Luis
Palacios, Nestor Sanchez, and Domingo Zamora whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them in having their
overtime hours withheld, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 5, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL rescind the overtime policy requiring ad-
vance management approval of overtime work, and WE
WILL notify you in writing that we have done so.
WE WILL rescind the rule prohibiting you from taking
complaints about your working conditions outside your
“chain of command,” and WE WILL notify you in writing
that we have done so.
WE WILL, within 14 days from the date of the Board’s
Order, restore to Norberto Araujo the use of a company
vehicle comparable to the vehicle he drove prior to April
2014.
TITO CONTRACTORS, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/05–CA–119008 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Letitia F. Silas and Pablo A. Godoy, Esqs., for the General
Counsel.
Jonathan W. Greenbaum and Kimberly Jandrain, Esqs. (Co-
burn & Greenbaum, PLLC, Washington, D.C.), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Washington, D.C. on the following dates: August
4–8, 12–14, 18, and September 11–12, 2014. The International
Union of Painters and Allied Trades, District Council 51 filed
the charges pertaining to this case between December 16, 2013,
and August 6, 2014. The General Counsel issued the initial
complaint on July 11, 2014. He filed the complaint in case 05–
CA–134285 on August 28, 2014, and I consolidated that case
with the others.
This case involves a host of alleged 8(a)(1) violations, in-
cluding alleged threats, interrogations, solicitation of grievanc-
es and promises predicated on eschewing union activity. It also
involves a number of alleged 8(a)(3) and (1) violations, includ-
ing: withholding overtime in retaliation for protected activity,
retaliatory warnings and a suspension, and the terminations of
the following employees: five of Respondent’s employees
working at the Montgomery County Recycling Center: Maria
Sanchez, Aracely Ramos, Reyna Sorto, Yasmin Ramirez, and
Maria Chavez.1 This case also involves the termination and/or
lay-offs of Tito Contractors construction employees Hernan
Latapy, Nestor Sanchez, and Mauricio Bautista and allegedly
depriving Norberto Araujo of use of a company vehicle.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Tito Contractors, a corporation, has its primary
office in the District of Columbia. It provides construction
services and labor mainly to state and local governmental enti-
ties in Maryland and Virginia. The construction services in-
clude carpentry, painting, drywall installation and snow remov-

1 In this decision I will ignore the Latin American custom of refer-
ring to individuals by the father’s last name and mother’s last name.
Thus I will refer to Aracely Ramos rather than Aracely Ramos-Garcia.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
al. Respondent also provides labor to the Maryland Environ-
mental Services Department (MES) at several recycling cen-
ters. Respondent performed services in excess of $50,000 out-
side of the District of Columbia in 2013. Respondent admits,
and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union, International Union of Painters and Allied Trades, Dis-
trict Council 51 is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Introduction: Respondent’s hierarchy
The highest ranking official at Tito Contractors is Maximo
“Tito” Pierola, its president and owner. The next highest rank-
ing officials are his son Alex Pierola, vice-president and Gen-
eral Manager Kenneth Brown. Next in the hierarchy in the
construction side of Respondent’s business are a number of
project superintendents including Edward Vivas, Manuel
Alarcon and Jorge Ramos. Below these project superintendents
are field superintendents such as Fermin Rodriguez. Below the
field superintendents are on-site crew leaders, including some
of the alleged discriminatees. It has not been established that
the crew leaders are supervisors or agents of Tito Contractors
within the meaning Section 2(11) and 2(13) of the Act.
On the other hand, Respondent in its July 24, 2013 Answer
to the Amended consolidated complaint, admitted that Maximo
Pierola, Alex Pierola, Kenneth Brown, Manual Alarcon, and
Fermin Rodriguez were supervisors pursuant to Section 2(11)
of the Act. I also find that they were agents pursuant to Section
2(13) of the Act. Whenever any of these individuals spoke to
rank and file employees about matters relevant to this case, the
employees reasonably understood that these individuals were
speaking on behalf of Tito Contractors and were reflecting
company policy, Community Cash Stores, 238 NLRB 265
(1978).
At the Montgomery County Recycling Center, Respondent’s
top on-site supervisor was Tomas Berganza, In its July 24,
2013 answer, Respondent admitted that Berganza was at all
relevant times a supervisor pursuant to Section 2(11) of the Act.
I find that he was also an agent of Respondent pursuant to Sec-
tion 2(13) for the reasons stated above with regard to the con-
struction supervisors. At times relevant to this case, Berganza
reported directly to Maximo Pierola, Alex Pierola, and Office
Manager Davys Ramos.
The events regarding the allegations concerning the recy-
cling center are somewhat confusing because Tomas Berganza
at least initially appeared to support the Union and signed a
union authorization card. However, as discussed below, at
some point Berganza realized that he was a statutory supervisor
and acted entirely in the interests of Respondent and as its
agent.
Berganza knew of the union activity amongst the recycling
employees and at least suspected that all five discriminatees
supported the Union before they were discharged. However,
Berganza signed a union authorization card on October 18 and
at least outwardly supported the Union until sometime in No-
vember. He was identified as a union supporter in the Union’s
letter to Respondent dated November 14, 2013.
At some point in time, Tomas Berganza learned that he was
a statutory supervisor and thus not protected by most of the
provisions of the Act. Berganza testified he learned that from
Respondent’s counsel between Thanksgiving and Christmas
2013 (Tr. 472). However, I do not credit that testimony and
infer that he became aware of this much earlier. He testified
that at some point he stopped cooperating with the Union, for
example, by not answering telephone calls from the union or-
ganizers. I infer that Berganza began operating in Respond-
ent’s interests in opposing union organizing before Maria
Sanchez’s discharge on October 30 (Tr. 333). This may have
been due to his realization that he was a statutory supervisor or
for other reasons.
The basis for my factual findings
In making factual findings, I am generally loath to take either
parties ‘self-serving testimony at face value, unless it is uncon-
tradicted or supported by non self-serving evidence in the rec-
ord. I would note in this regard that Maximo “Tito” Pierola and
Manuel Alarcon, who are alleged to have committed unfair
labor practices, did not testify at all. Other of Respondent’s
supervisors and/or agents were called as witnesses by the Gen-
eral Counsel but not by Respondent, such as Fermin Rodriguez,
Tomas Berganza, and Alex Pierola. Respondent relied princi-
pally on the testimony of its general manager, Kenneth Brown,
who in many instances had no first-hand knowledge regarding
the facts of the case. Thus, much, if not all, of the testimony of
the General Counsel’s witness testimony regarding unfair labor
practices pertaining to Respondent’s construction employees is
uncontradicted. Where that it the case, this testimony is credit-
ed.
The record with regard to Respondent’s recycling operations
is quite different. Tomas Berganza, Respondent’s supervisor at
the Shady Grove or Derwood, Maryland recycling center, was
called by the General Counsel and contradicted the testimony
of the discriminatees. Also, the General Counsel called MES
supervisors David Wyatt and Mark Wheeler as witnesses, who
were generally supportive of the Respondent’s position. The
part of the case involving the recycling employees thus requires
resolution of the contradictory testimony of witnesses.
As to those instances in which there is a conflict in testimo-
ny, I find no basis for resolving the credibility of the witnesses
by virtue of their demeanor when testifying. Thus, I base these
credibility determinations on the weight of the respective evi-
dence, established or admitted facts, inherent probabilities and
reasonable inferences that may be drawn from the record as a
whole, Daikichi Sushi, 335 NLRB 622 (2001).
As early as October 11, 2013, Maximo “Tito” Pierola learns his
construction employees are filing a class action suit against
Respondent. Respondent’s construction employees file suit
pursuant to the Fair Labor Standards Act on October 18, 2013;
About a dozen or so of Respondent’s construction employees
met with union officials in September 2013. Among the sub-
jects discussed was employees’ belief that they were not being
paid for overtime work as required under federal law. The Un-
ion facilitated contact between these employees and the law
firm of Latham and Watkins, which is representing the employ-
ees on a pro bono basis. Six employees met with the firm’s
TITO CONTRACTORS, INC. 13
attorneys on September 16, 2013 (GC Exh. 96).
A number of employees met with the firm’s attorney prior to
October 11. The law firm filed a class action suit against Re-
spondent for failing to pay Roberto Ayala, Mauricio Bautista,
Geremias Berganza,2Hector Delgado, Sabino Diaz, Jose
Jimenez, and Domingo Zamora in conformity with the re-
quirements of the Fair Labor Standards Act on October 18,
2013. On November 13, 2013, Francisco Campos, Cesar Ro-
driguez, Nestor Sanchez, Milton Vega, Miguel Padron, Manual
Rodriguez, Luis Palacious, Jose Granado, Jose Berganza, Jose
Amaya, Jose Diaz, Vitalano Berganza, and Hernan Latapy
joined the suit. On November 22, 2013, Manuel Medrano
joined the suit. Among the others joining the suit in 2014 was
Norberto Araujo on May 5.3
Respondent’s owner, Maximo Pierola was aware that the suit
was going to be filed as early as October 11. On that day he
called two employees and expressed his feelings about the law-
suit.
Pierola called employee Jose Amaya and told Amaya that he
was very disappointed that the employees or that Amaya per-
sonally had taken legal action against his company. Pierola
told Amaya that he should think about his family before he
decided to do the things he was doing. (Tr. 1138–1142.)4
Maximo Pierola also called Geremias Berganza on October
11 (Tr. 818). He told Geremias that he could not believe that
Geremias was doing this to him. Maximo told Geremias that
“you guys are stabbing me in my back.” He also told Geremias
that it was never too late to reverse his decision to file suit.
Further, Pierola said to Geremias that he did not want back
stabbers in the company. Also, he said that if Geremias did not
like his company, there were thousands of jobs elsewhere (Tr.
820–821).
Fermin Rodriguez tells employees that those participating in
the FLSA lawsuit will not work overtime
On one or more occasions in October 2013, Fermin Rodri-
guez, one of Respondent’s superintendants, told employees,
including Domingo Zamora and Geremias Berganza, two of the
original seven FLSA plaintiffs, that Respondent would not
allow those employees who participated in the FLSA lawsuit to
work overtime. Although not pled as a violation, this evidence
is relevant to the fact, as discussed later, that, at least in one pay
period, Respondent discriminated against the original seven

2 Berganza is not related to Respondent’s supervisor Tomas Ber-
ganza, but is a cousin of Respondent’s supervisor Fermin Rodriguez.
3 Although beyond the scope of this proceeding, it is clear that Re-
spondent did not pay employees time and a half for hours worked out-
side of normal business hours for Arlington County. Respondent’s
general manager, Kenneth Brown testified that Owner Maximo “Tito”
Pierola did not read his contract with Arlington closely enough and did
not realize that he could bill Arlington time and half for hours worked
outside of normal business hours (Tr. 1301).
4 Although Amaya did not join the suit until November, his testimo-
ny about his October 11 conversation with Maximo Pierola is uncon-
tradicted. I therefore credit it. I infer that Pierola found out that Amaya
was one of the employees who met with the Latham and Watkins attor-
neys earlier.
plaintiffs in assigning overtime work.5
October 18, 2013: First contact between Respondent and the
Union in 2013
There was interaction between the Union and Respondent in
2012 when Sandro Baiza, a union organizer, spoke or attempted
to speak with Respondent’s General Manager Kenneth Brown,
on behalf of three employees who had been fired (Tr. 1328–
139). Respondent reinstated all three. Baiza spoke directly to
Respondent’s owner, Maximo “Tito” Pierola in January 2013
on behalf of one of these employees, who still had a wage dis-
pute with Respondent.
The first contact between the Union and Respondent’s man-
agement regarding an organizing drive in 2013 occurred on
October 18, 2013, the same day on which the FLSA suit was
filed. On that day, Tomas Berganza,6 Respondent’s supervisor
at the Shady Grove, Maryland (also referred to as the Derwood
facility) recycling plant met with union organizer Sandro Baiza
and one of Respondent’s construction employees, Mauricio
Bautista. At the time Berganza and Bautista, who had been in
contact with the union for several months, were close personal
friends. Berganza signed a union authorization card at that
meeting.
As discussed below, Berganza, on behalf of Respondent, en-
gaged in a number of unfair labor practices. It is unclear
whether he was in fact interested in joining the Union in Octo-
ber. However, he was no longer interested in joining the Union
or assisting it by early November. Tomas Berganza may have
changed his mind when he learned that he was a statutory su-
pervisor and thus unprotected by the provisions of the NLRA.
In October, Baiza asked Tomas Berganza to assist him in
getting other Tito employees at the recycling center to sign
cards. Berganza asked Baiza which of Tito’s employees at the
recycling center had already signed cards (Tr. 332). Within a
week of October 18, Berganza had a phone conversation with
organizer Baiza. Baiza asked Berganza if a certain four em-
ployees had signed authorization cards. Berganza informed
him that they had not. Then Berganza asked Baiza if Yasmin
Ramirez, Maria Chavez, Reyna Sorto, Aracely Ramos, and
Elizabeth Lemus, had signed cards.7

5 The complaint alleges that Rodriguez and Manual Alarcon told
employees that the plaintiffs could not work overtime without the ap-
proval of senior management. In fact, the record shows that Rodriguez
told employees that the plaintiffs would not get overtime work. I find
that the statements made by Rodriguez violated Sec. 8(a)(1). There is
no due process issue here as the gravamen of the violation is the same,
a statement that Respondent would discriminate on the basis of protect-
ed activity. Moreover, Respondent did not avail itself of the opportuni-
ty to seek a contradiction from Fermin Rodriguez, when he was called a
witness by the General Counsel.
6 Whenever I refer to Berganza without a first name, I am referring
to Tomas. Other employees with the same last name will be referred to
by their first and last names, or simply their first name,
7 I credit the testimony of Maria Guerra, a current employee, who
overhead this conversation in Baiza’s car (Tr. 163–164). Moreover,
Berganza admitted that he asked Union Organizer James Coats whether
specific employees had signed union cards, including Elizabeth Lemus
and Maria Chavez (Tr. 333–334). Coates told Berganza that an em-
ployee named Maria had signed a card. Although there were several
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Tito’s work at the Montgomery County Recycling Center
At the Montgomery County Recycling Center in Shady
Grove, 29 Tito employees work on a conveyor belt separating
recycling materials into different categories, e.g. glass, clear
plastic, colored plastic, etc. These employees work at the recy-
cling center pursuant to a contract between the State of Mary-
land Environmental Services Department (MES) and Tito Con-
tractors. Two or 3 employees of MES, including Juana Rosales
and Norma Garcia, also work on the sorting line. Part of their
responsibilities is to oversee the work of the Tito employees.
The contract between MES and Respondent gives MES the
right to request that Respondent remove any of Respondent’s
employees from the site. Respondent is required to comply
with this request (GC Exh. 95, sec. 3.3.2).8
The senior MES employees at Shady Grove are Field Opera-
tions Supervisor David Wyatt and Mark Wheeler, the opera-
tions manager. Wheeler reports to Wyatt. Neither Wheeler nor
Wyatt are proficient in understanding spoken Spanish. Re-
spondent’s on-site supervisor, Tomas Berganza, often serves as
the translator between, Wheeler or Wyatt and the Tito rank and
file employees at the recycling center.
A Montgomery County employee, Thomas Kusterer, a pro-
ject manager in the County Division of Solid Waste, is also
responsible for the recycling center. The center produces plas-
tic water bottles from recycled materials. Thus, it produces
income for the county, which is dependent on the production of
the Tito recycling employees.
Respondent’s productivity tests for its recycling employees
At some point in the late summer of 2013, Tom Kusterer,
Montgomery County’s project manager, told MES’ supervisors,
Wyatt and Wheeler that the production of plastic bottles at the
Shady Grove recycling center had declined. Wheeler discussed
this with Tomas Berganza, who devised a productivity test for
Tito’s employees at the request of MES and Kusterer. Each
employee was tested on the number of hoppers they could fill
on two test days at station 37a. These tests were conducted
between September 9 and November 27, 2013; the results were
provided to MES.
None of the five alleged discriminatees, who were later fired
by Respondent in the fall of 2013, was a particularly low scor-
er. Maria Chavez was the top performer. Aracely Ramos and
Reyna Sorto were also among the top performers. No action
was taken against the poorer performers on the test (GC Exh).
14. In fact, it appears nobody made any use of the test results.
Mark Wheeler’s day planner for the months of October and
November indicates that he monitored the performance of al-
leged discriminatees Reyna Sorto and Yasmin Ramirez closely,
but did no monitoring of the poorer performers on the produc-
tivity test, such as Sylvia Sandino, Adriana Villavicencio, Miri-

Tito employees named Maria at the recycling center, Berganza suspect-
ed or knew Coates was talking about Maria Chavez ,( Tr. 333–337).
Four of these five employees, excluding Lemus, were fired by Re-
spondent within the next 2 months.
8 The section provides: “MES shall have the right to request that the
Contractor replace certain of the Contractor’s employees. The Contrac-
tor will replace such employees by the start of the next business day
following verbal notification from the MES supervisor.”
am Meija and Estella Rodriguez. (GC Exh. 48(a), GC Exh.
14.)9 Chavez’ performance was consistent with the fact she
was most skilled sorter at the facility, Tr. 725.
October 25, 2013: Respondent issues new policy on overtime
for its construction employees
A week after being informed of FLSA lawsuit, Maximo
Pierola conducted a meeting for all his construction employees.
He announced that henceforth all overtime work would have to
be approved in advance by either himself, his son Alex Pierola,
or General Manager Kenneth Brown. Superintendent Manual
Alarcon had made a similar announcement to employees in
Virginia the day before. Although, Respondent contends such a
policy existed prior to the filing of the lawsuit, such a policy
was not strictly enforced. At the October 25 meeting, a memo
setting forth the policy was distributed to all construction em-
ployees.
On October 25, after the meeting ended, Norberto Araujo
approached Maximo to complain that he had not been paid
enough for work he had performed at the University of Mary-
land. Pierola told him that Respondent “would fix that.”
Araujo asked Pierola about the memorandum. Pierola told
Araujo that since he had not joined the lawsuit,10 nothing would
change with respect to his overtime hours. At some point, Re-
spondent’s field superintendent, Fermin Rodriguez, also told
employees that the new or newly enforced overtime policy only
applied to those employees who joined the lawsuit.
October 30, 2013: Respondent discharges Maria Sanchez
In 2013 one of the MES employees working on the produc-
tion line at the Shady Grove recycling center was Juana
Rosales. She is and was highly valued by MES. On about
October 30, Rosales was told that a Tito employee had called
her a whore. Another employee told Rosales that the employee
who called Rosales a whore was Maria Sanchez. Sanchez had
worked at the recycling center for 6 months, although she had
worked for Tito Contractor’s construction division before that.
Rosales complained to Tomas Berganza, who told her to tell
MES Operations Manager Mark Wheeler (Tr. 1388–1392).
However, Wheeler was not at work when Sanchez was fired
and testified that he had no involvement in requesting
Sanchez’s removal (Tr. 689).11
Tomas Berganza testified that Rosales complained to Wyatt.
However, Rosales did not testify that she went to Wyatt or
anyone else at MES about Sanchez.

9 Villavicencio and Meija are identified as union supporters in the
Union’s November 14 letter to Respondent. Wheeler’s first notation
about the performance of any alleged discriminate during the relevant
time period was on October 10, 2013, the day before Maximo Pierola
called Jose Amaya and Geremias about the FLSA suit. The notation is
about Yasmin Ramirez, whose husband, Jose Jimenez, was one of the
original FLSA plaintiffs. This is a further indication the MES’ removal
requests were related to the protected and union activity of the discrim-
inatees.
10 Araujo joined the suit in 2014.
11 Thus, it is clear that all the post-it notes in Wheeler’s day planner
(GC Exh. 48(a)), one of which recounts the reasons Respondent re-
quested removal of Sanchez from the jobsite, are not contemporaneous
with the event recorded.
TITO CONTRACTORS, INC. 15
Wyatt’s testimony regarding Sanchez is as follows:
Q. Are you familiar with someone by the name of
Maria Raquel Sanchez?
A. Yes.
Q. And who was she?
JUDGE AMCHAN: Well, I mean, I know who all
these people
are. He knows who they are. What do you want him to
—
Q. BY MS. SILAS: Did you request her removal?
A. Yes.
Q. Why?
A. Performance, I believe.
Q. What was it about her performance?
A. Picking slowly.
Q. Did Tomas tell you that?
A. I can't remember if Tomas or Norma or Juana came
to me.
Q. I see. And any other reason for her removal?
A. I can't remember if it was Sanchez that was teasing
the coworkers, or which lady it was.
Tr. 751.
Since Rosales did not testify that she complained to Wyatt
about Sanchez and he could not recall whether or not she did, I
find that she did not do so. Since Norma Garcia did not testify,
I find there is no credible evidence that she complained to Wy-
att about Sanchez’ work performance.
It is unclear why David Wyatt and Mark Wheeler were so
eager to support Respondent in this case. However, neither of
them is a credible witness. Given the ambiguity of Wyatt’s
testimony, there is absolutely no credible evidence that there
was anything wrong with Sanchez’s performance or that any-
one told Wyatt that there was. Tomas Berganza testified that
he talked to Sanchez once about working too slowly (Tr. 350).
He did not testify that he complained about this to Wyatt or
Wheeler.
I find that any information that Wyatt received about
Sanchez came from Berganza and was motivated by Respond-
ent’s desire to thwart the organizing drive and/or to get rid of
employees who complained about working conditions in con-
cert.
Rosales had a troubled relationship with a number of Tito
employees, but Sanchez was not one of them. There is no cred-
ible evidence that Sanchez called Rosales a whore or anything
else derogatory.
On October 30, Respondent, by Alex Pierola fired Sanchez,
on Berganza’s recommendation. Respondent had never disci-
plined Sanchez prior to October 30.12 The termination letter
signed by Alex Pierola does not mention Sanchez calling
Rosales any derogatory names; it says MES requested her re-

1 2 Sanchez testified that Berganza told her that he had heard she’d
been talking to the Union just before he fired her, as well as complain-
ing about her performance on the job. She had not received any prior
warnings about her performance. Berganza denied mentioning the
Union to Sanchez. I find Berganza not to be a credible witness general-
ly. Thus, although self-serving, I credit Sanchez.
moval for “unsatisfactory work behavior.”
Respondent discharges Aracely Ramos on October 31, 2013
Aracely Ramos had worked for Respondent at the Mont-
gomery County recycling center for three years before she was
fired on October 31, 2013. During that period she had received
one disciplinary warning in June 2013 for calling Tomas Ber-
ganza unfair and a racist.
Juana Rosales, on one occasion, reported to Berganza that
Aracely Ramos left the production line without first informing
Rosales. She was unable to testify as to when this occurred or
relate this incident in any way to the date of Ramos’ termina-
tion (Tr. 1385–1388).
David Wyatt testified that he requested that Ramos be re-
moved because her performance was very low (Tr. 752). As in
the case of Sanchez, there is no credible evidence to support
such a contention. In an affidavit given to the Board during its
investigation of the union’s charges, Wyatt stated that some-
time in October 2013 Norma Garcia and Juana Rosales told
him that Ramos was letting materials bypass her on the sorting
line to bother coworkers. Rosales not did testify to saying any
such thing to Wyatt; Garcia did not testify and I find that the
statement is false.
Wyatt went on to state in his sworn affidavit that he spoke to
Berganza about this. Wyatt told Berganza to tell Ramos that if
this happened again, she would no longer be employed at the
recycling center (GC Exh. 17). Berganza testified that Ramos
“admitted” that she was letting materials pass her station to
bother her coworkers (Tr. 366). Ramos denies telling Berganza
this and I credit her testimony. There is no reason why Ramos
would make such a confession to Berganza. In any event Ber-
ganza told Wyatt that Ramos was letting materials pass to both-
er her coworkers.
Wyatt testified that either Berganza or Wheeler advised him
of problems with Ramos’ production. However, Wheeler did
not testify to making any complaints about Ramos. Indeed, he
was on vacation when she was fired. I conclude that all of
Wyatt’s information about Ramos came from Berganza.
Rosales testified that she spoke to Berganza about Ramos. She
did not testify about discussing Ramos with Wyatt or Wheeler.
Berganza’s email (GC Exh. 17), indicates that Wyatt as of
10:49 a.m. on October 31, Wyatt had not requested Ramos’
removal from the jobsite. In General Counsel’s Exhibit 18,
Berganza’s note to Alex Pierola and Davys Ramos, indicates
that between 10:49 and 12:35 a.m., Wyatt did so after talking to
Berganza again. Respondent then discharged Ramos.
Respondent discharges Reyna Sorto on November 14, 2013
On November 1, 2013, the day after Respondent discharged
Ramos and two days after it discharged Sanchez, Tomas Ber-
ganza sent an email to Office Manger Davys Ramos stating that
he had been watching Reyna Sorto for a week and that Sorto
was working very slowly. He stated further that he had not
discussed this with Sorto and hoped to talk to Mark Wheeler
when he returned from vacation (GC Exh. 20).
Mark Wheeler’s testimony is inconsistent with Berganza’s
contemporaneous email and thus not completely credible. He
testified that he started monitoring Sorto himself the entire
month of October and discussed her work performance with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Berganza in October (Tr. 711–712). He also testified that Ber-
ganza told him in October that he had talked to Sorto about her
work habits, which is also inconsistent with the Berganza No-
vember 2 email.
Mark Wheeler testified that he noticed that Reyna Sorto’s
production had declined. On November 1, 2013, Berganza
called Reyna Sorto to his office and asked her why she was
working slowly. Sorto told him her left arm hurt. Berganza
told Sorto to get a doctor’s note within the next 2 weeks. Ber-
ganza spoke to Mark Wheeler about Sorto’s production on
November 8. Wheeler, who generally observed the Tito em-
ployees on the sorting line three times a day, said he would
watch Sorto. Wheeler noticed that Sorto worked considerably
slower when she was not aware he was watching her.
Regardless of whether this was true or not, there is no evi-
dence as to how Sorto’s production compared to that of other
employees. Based on the productivity tests it is likely that even
when Sorto was not working to her full capacity, she was work-
ing faster than the employees who scored much lower on the
test and who were never monitored by Wheeler or removed
from the jobsite.
In late October, Berganza also informed Wheeler that anoth-
er employee, Alba Ruanda, told him that Sorto was telling em-
ployees to slow down on the production line. Neither party
called Rauda to testify, so there is no credible evidence that this
was true. On or about November 14, Wheeler directed Re-
spondent to remove Sorto from the recycling center.
November 15, 2013: Filing of Representation Petition
On November 15, the Union filed a representation petition
with the NLRB seeking to represent Respondent’s recycling
employees at Shady Grove (aka Derwood, MD), Cockeysville
Maryland and its construction employees.
The day before the petition was filed, the Union sent Re-
spondent a letter identifying 35 union supporters in Respond-
ent’s workforce. Among those named were a number who are
alleged to the victims of discriminatory conduct by Respondent.
These included five recycling employees who were terminated
between October 30 and December 13, 2013: Maria Sanchez,
Yasmin Ramirez, Reyna Sorto, Aracely Ramos, and Maria
Chavez. It also included Mauricio Bautista, Hernan Latapy,
who were discharged by Respondent in 2014, Nestor Sanchez,
who was laid off and 12 employees who were allegedly denied
the opportunity for overtime work. Recycling Supervisor To-
mas Berganza was also named as a union supporter in the letter.
December 2, 2013: Representation Hearing
On December 2, 2013, the Board conducted a representation
hearing to determine the appropriate unit for an election. Mau-
ricio Bautista testified in this proceeding on behalf of the Un-
ion.
Respondent discharges Yasmin Ramirez on December 6, 2013
Yasmin Ramirez worked for Respondent for 6 years and at
the recycling center for four years. During that time, she had
been disciplined once in 2011 for failing to wear safety glasses.
In early October 2013 one of Respondent’s employees, Martha
Serpas, complained to Tomas Berganza that Yasmin Ramirez
had been teasing her and calling her old and stupid (Tr. 393).
Mark Wheeler joined Berganza and Serpas on this occasion.
Berganza translated for Serpas, who speaks little or no English,
and Wheeler, who speaks only a little Spanish. Wheeler told
Berganza that he would watch Ramirez.
It is unclear why Wheeler decided to monitor Ramirez’s
work performance because Serpas’ complaint was not about
Ramirez’s work. This decision could well be related to Re-
spondent’s desire to retaliate against Ramirez’s husband, Jose
Jimenez, one of the original FLSA plaintiffs. Wheeler testified
that he watched Ramirez for the entire month of November. He
noticed Ramirez scooping material on occasions on the recy-
cling line, which is improper, on October 10 and on October 27
or 28. If Wheeler noticed her scooping material on any other
day, he did not consider it significant enough to make a con-
temporaneous note in his day planner.
As noted earlier, the post-it notes in General Counsel’s Ex-
hibit 48(a), Wheeler’s day planner, are not contemporaneous
with the event recorded. I do not credit his post-it notes indi-
cating that Juana Rosales chastised Ramirez for scooping mate-
rial or that Wheeler observed Ramirez scooping material on any
date in November. Indeed, his testimony at transcript 729 and
731indicates, contrary to his post-it note, that Wheeler had no
idea whether anyone chastised Ramirez for scooping material.
Tomas Berganza did not testify to discussing this with Ramirez.
Even Wheeler’s day planner notes are suspect in that there are
two versions, one showing that he observed Ramirez scooping
material on Sunday, October 27, and the other with that date
blank.13
Rosales testified about discriminatees Sanchez, Chavez and
Ramos, but did not say word one about Yasmin Ramirez.
There is no credible evidence that anyone chastised Ramirez
about scooping material. Respondent’s exhibits indicate that if
it had any issues with Ramirez it involved her relationship with
other employees, not the manner in which she performed her
job.
For reasons not explained in this record, according to his day
planner, Mark Wheeler, met with Martha Serpas on November
27, 2013.14 Berganza apparently acted again as translator.
Serpas apparently complained about comments Ramirez made
to her a month earlier. It is unclear whether Serpas made any
complaints about Ramirez that were more recent. Afterwards,
on the same day, Tomas Berganza sent an email about this
meeting to Maximo and Alex Pierola and Respondent’s office
manager, Davys Ramos (GC Exh. 27). The email stated that
Serpas complained that Ramirez teased her and recounted an
incident that occurred in late October.
Wheeler testified that he requested that Respondent remove
Ramirez from the Shady Grove site. On December 2, Berganza
sent Alex Pierola and Davys Ramos an email stating that

13 Wheeler’s post-it notes also recount that Ramirez would work
faster when she was being watched than when she was not being
watched. This is the same accusation he made about Reyna Sorto. He
did not repeat this contention about Ramirez when testifying at the
hearing. There is no indication about this in his contemporaneous day
planner notes . This casts doubt in my mind as to whether either accu-
sation was true.
14 Serpas did not testify in this proceeding.
TITO CONTRACTORS, INC. 17
Wheeler and Wyatt requested that Respondent remove Ramirez
because she had no respect for her co-workers. He did not
mention anything about scooping material or about Ramirez’s
work performance in any other respect.
That Berganza did not think Ramirez was a bad employee is
established by the fact that he called Davys Ramos, then Re-
spondent’s office manager, and asked if Ramirez could be
transferred to Respondent’s recycling operation at Cock-
eysville, near Baltimore.15 Berganza’s notes to Davys Ramos
and Alex Pierola (GC Exh. 28) say nothing about Ramirez
scooping material or any other problem with her work. Ber-
ganza only mentioned Ramirez’ problems with Martha Serpas
and other coworkers as reasons for MES request for her remov-
al, which may have occurred over a month previously.
Davys Ramos called him back and told Berganza that Alex
Pierola, Respondent’s vice president, rejected this suggestion.
There is no evidence in this record as to the reasons Respondent
declined to transfer Yasmin Ramirez. She was fired instead.
The Regional Director issues a decision and direction of elec-
tion on December 13, 2013
On December 13, 2013, the Regional Director for Region 5
issued a decision and direction for election, Case 05–RC–
117169. The Regional Director found that an employer-wide
bargaining unit, one that included Respondent’s recycling em-
ployees and construction employees was appropriate. This
finding was contrary to Respondent’s contentions. The Re-
gional Director also rejected Respondent’s contention that a
number of Respondent’s crew leaders, who had the title of su-
pervisor, were supervisors within the meaning of Section 2(11)
of the Act.16
Respondent discharges Maria Elena Chavez on
December 13, 2013
Maria Elena Chavez worked for Respondent for about 10
years. She was generally considered one of, if not the most
productive of Respondent’s employees at the Shady Grove
recycling center (Tr. 725). It appears that she was generally
respected, but that some employees found her to be somewhat
intimidating.
In September and October, a number of Respondent’s em-
ployees were upset about the goggles they had been provided to
protect their eyes. These goggles were apparently too big and
caused employees to develop headaches. Chavez and Aracely
Ramos complained to Berganza about the goggles on Septem-
ber 25. A group of five employees, including Yasmin Ramirez,
complained to Berganza about the goggles on another occasion.
Chavez also complained directly to MES personnel about the

15 Tomas Berganza’s effort to have Yasmin Ramirez transferred
from Shady Grove to Cockeysville, is somewhat inconsistent with the
notion that MES’ request that Ramirez be removed from Shady Grove
originated with him. However, the unprecedented nature and number
of the MES removal requests during the organizing drive leads me to
conclude that none of these requests would have been made without the
involvement of Respondent.
16 Respondent appears to have abandoned this contention in this un-
fair labor practice proceeding. Assuming that it hasn’t abandoned it,
Respondent failed to establish that any of the crew leaders or discrimi-
natees in this case are statutory supervisors.
goggles.
On October 10, Chavez went to Berganza again to complain
about the goggles. She said she wanted to talk to Mark
Wheeler and David Wyatt about the goggles. Berganza told
Chavez she was not permitted to complain about the goggles
directly to MES. Chavez insisted on speaking to Wyatt and
Wheeler. Berganza called them and they came to his office.
Chavez made her complaints about the goggles to Wyatt and
Wheeler in Spanish. Berganza translated her complaints into
English. Wheeler promised to do something about the goggles.
Later that day Stedson Linkous, Respondent’s safety manag-
er, came to the recycling center. Linkous told Chavez that she
was prohibited from contacting MES directly and that she
would be suspended for seven days unless she apologized for
going over the head of her supervisor. Linkous also told
Chavez that if did something like this again she would be fired
(Tr. 558).17
Respondent, as a general matter, forbids its employees to
take complaints directly to MES. Other employees have also
been disciplined pursuant to his rule.18
On December 10, at the end of the workday, Chavez had a
verbal altercation with Juana Rosales, the MES employee
working and supervising the recycling line. Someone swept
cold dirty water onto Chavez, who was working a level below
them. Chavez blamed another employee. Rosales claimed that
she swept the water and may have been implying that Chavez
was making the story up. Although Chavez was very angry,
she did not touch Rosales and Rosales was not afraid that she
would do so (Tr. 1364).
At some point Rosales complained to Berganza and the al-
tercation came to the attention of MES Supervisor David Wy-
att. Wyatt told Berganza that it was up to Respondent as to
whether or not Chavez remained an employee at the Shady
Grove recycling center. Neither Wyatt nor Wheeler requested
nor recommended that Chavez be removed from the Shady
Grove site.19
Berganza requested Chavez’ personnel file from Respond-
ent’s main office. He reviewed that file and then decided that
Chavez be removed from the site. One of the documents he
reviewed was his October 10 memo chastising Chavez for
complaining directly to MES about the goggles. Respondent

17 Linkous did not testify. Chavez’s account of this incident is un-
contradicted.
18 In complaint par. 14, the General Counsel alleged that Tomas
Berganza violated the Act by instructing employees not to speak to
representatives of MES concerning their working conditions and that
Respondent violated the Act by threatening them with discipline for
doing so. Restricting employees from taking complaints about working
conditions outside of their “chain of command” is a clear violation of
the Act, Kinder Care Learning Center, 299 NLRB 1171 (1990);
Guardsmark, LLC, 344 NLRB 809–810 (2005) enfd. in relevant part
475 F. 3d 369 (D.C. Cir. 2007); Trinity Protection Services, 357 NLRB
1382 (2011); Greenwood Trucking, 283 NLRB 789, 792 (1987); Cen-
tral Security Services, 315 NLRB 239, 253–254 (1994).
19 Wheeler’s testimony at Tr. 723 that he requested Chavez’s re-
moval is, as demonstrated by Wyatt’s testimony, clearly inaccurate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
then, by more senior management, discharged Chavez. 20
December 18, 2013: Tomas Berganza interrogates Respond-
ent’s recycling employees
On December 18, Tomas Berganza summoned each of Re-
spondent’s recycling employees at Shady Grove to his office.
There he interrogated them individually. He asked at least
some of them if they had signed union cards and how they in-
tended to vote in the union election. At about the same time, he
handed out a packet intimating that if the union won the repre-
sentation election there would be closer scrutiny of the employ-
ees’ immigration status.
December 24, 2013 meeting in Baltimore21
On December 24, 2013, Maximo Pierola met with construc-
tion employees at a worksite in Baltimore. He spoke against
union representation and suggested that employees would fare
better by negotiating directly with the company. Pierola passed
out copies of a page from Mauricio Bautista’s testimony at the
representation case proceeding. In that testimony Bautista testi-
fied that many of Respondent’s employees did not have bona
fide documentation to work in the United States.
January 10, 2014: Respondent requests Board Review of the
Regional Director’s December 13, 2013 Decision and Direction
for Election
In its request for review, Respondent challenged the Region-
al Director’s determination that an employer-wide bargaining
unit was appropriate. It also challenged the Regional Director’s
determination that its crew leaders were not statutory supervi-
sors.
Respondent warns, then suspends, Jose Amaya for failing to
submit daily job reports on time
As mentioned previously, on October 11, 2013, Maximo
Pierola called Jose Amaya at work after learning that Amaya
and other employees were thinking of suing him. Pierola told
Amaya “that before he [Amaya] decided to do the things that he
was doing, to think about his family” (Tr. 1141). On Novem-
ber 15, 2013, the Union advised Respondent that Amaya was
one of its supporters.
On November 22, 2013, Respondent instructed its superin-
tendents, project managers and crew leaders that at the end of
each work day, they must email a report to the company office
with the following information: job name, purchase order
number, a summary of the work done, pictures of the job before
work started and after it finished and the names of the employ-
ees who worked on the job (GC Exh. 39).
On December 11, Amaya submitted this report for the prior
day somewhat late. Maximo Pierola administered a discipli-

20 The General Counsel contends that Respondent by Tomas Ber-
ganza made the decision to remove Maria Chavez from the Shady
Grove recycling center without reference to her personnel file. This is
not entirely clear. Certainly, Berganza and Alex Pierola were aware of
the contents of her personnel file by the time she was terminated on
December 13. I find that it was relied upon and moreover, as explained
herein, Chavez’ removal from the jobsite and termination violated the
Act regardless of whether Respondent considered her personnel file.
21 Complaint par. 11.
nary warning to Amaya. He issued another such warning on
December 16, to Amaya and Roberto Ayala, which he can-
celled the next day.
On December 24, Maximo Pierola met with some employ-
ees at the Lakeland Recreation Center in Baltimore. He dis-
tributed copies of testimony given by Mauricio Bautista at the
representation hearing of December 2, implying that many of
Respondent’s employees did not have bona fide immigration
papers. He told employees not to trust Bautista. Pierola then
proceeded to ask several employees their reaction to Bautista’s
testimony. Amaya defended Bautista and Pierola got angry
with Amaya.
At this meeting, Pierola also suggested that he and the em-
ployees could settle their differences informally—without the
Union.
On January 10, 2014 Respondent suspended Amaya for 7
days for his failure to submit daily job reports for work per-
formed January 7–9. Amaya had notified Respondent that his
cellphone was not working on January 9. One of Respondent’s
office secretaries informed all Respondent’s managers to con-
tact Mauricio Bautista, who was working with Amaya, instead
of Amaya.
Amaya submitted the reports for all three days on January 10
at 3:43 a.m. and minutes thereafter. Amaya worked from 6
a.m. on January 8, until 2:30 a.m. on January 9. He also
worked from 6 a.m. on January 9 until 2:30 a.m. on January 10.
No other employee has been suspended for failing to submit
the daily job reports or for submitting them late, or was given
any other discipline aside from possibly Mauricio Bautista.
Other employees either failed to submit daily reports or
submitted them late without being disciplined. These include
Norberto Araujo—before Respondent was aware of his joining
the FLSA suit or any other protected activity, and Henry Cas-
tellon, for whom there is no evidence of any protected activity
(GC Exh. 108(b)).
Mandatory employee meeting of February 27, 2014: Mail Bal-
lot Election February 28 to March 14, 201422
The Board conducted a mail ballot representation election
amongst Respondent’s construction and recycling employees
between February 28 and March 14, 2014. The day before
balloting began, Respondent held a mandatory meeting for
entire bargaining unit at its facility at Sligo, Maryland. Two
employees, Mauricio Bautista and Domingo Zamora, were not
invited to the meeting.
Maximo Pierola encouraged employees to vote against union
representation. He described Bautista and Zamora as “rotten
apples” and stated that the other employees should not listen to
them (Tr. 971). In response to a question, Pierola stated that if
the Union kept bothering him, he could either close the compa-

2 2 The Region’s Order of August 1, 2014, consolidating Case 5–
CA–131619 with the prior matters alleges that Respondent violated
Sec. 8(a)(1) of the Act in several respects at the February 27, 2014
meeting (GC Exh. 1-BB).
TITO CONTRACTORS, INC. 19
ny, get subcontractors or go bankrupt (Tr. 972).23
Maximo Pierola also suggested that the employees’ griev-
ances could be resolved with resort to private mediation be-
tween the company and its employees. Norbert Araujo re-
sponded that Maximo Pierola had been promising to resolve
employee grievances for the past 25 years, but never did so.
Pierola responded that this would change.
The election was conducted as scheduled. However, the bal-
lots were impounded and apparently have not yet been tallied
(Tr. 57–58).
Araujo receives a warning for working overtime
without permission24
The day after Araujo spoke up at the February 27 meeting,
Respondent issued him a written warning for working overtime
without permission. Since the October 25 memo was issued,
Araujo had worked overtime on numerous occasions without
getting permission from Maximo Pierola, Alex Pierola, or Ken-
neth Brown. He was not disciplined on any of those occasions.
April 2014 conversation between Maximo Pierola and Geremi-
as Berganza25
In February 2014, Geremias Berganza was assigned to work
at the MES recycling center in Cockeysville, Maryland. While
working there, he sustained an injury to his eye. Afterwards, he
performed work at the home of Alex Pierola, Maximo’s son.
Respondent paid Geremias in cash for this work. Geremias
believed he was not paid properly and complained to Union
Organizer Sandro Baiza.
In April 2014 Maximo Pierola called Geremias. He told him
that he could sue him for defamation and that he would fire him
in person.
April 23, 2014: Respondent orders Norbert Araujo to return his
company truck (complaint par. 21)
Norbert Araujo signed a consent form to join the FLSA class
action suit on February 10, 2014 (GC Exh. 67). He testified that
he informed Alex Pierola of that fact on March 6, after Alex
Pierola had given him a written warning for working overtime
without approval (Tr. 980–983). Araujo’s testimony is uncon-
tradicted and therefore credited. Araujo’s consent form was
filed with the United States District Court on May 5, 2014 (GC
Exh. 13).
On April 23, Alex Pierola ordered Araujo to return his com-
pany van. The General Counsel alleges that this was done to
retaliate against Araujo assumedly for joining the FLSA suit
and challenging Maximo Pierola at the February 27, 2014 em-
ployee meeting. Prior to April 23, Respondent had provided
Araujo with a company van to drive from home to work since
1992. In April 2014 that van was a Ford Araujo had been driv-
ing for 4–5 years.
Kenneth Brown testified that he attended a manager’s meet-
ing at which it was decided to reduce the number of company

23 One company to which Respondent subcontracts is Z Maxim,
which is owned by Maximo Pierola’s daughter.
24 This was not pled as a violation of the Act. I assume that
Araujo’s testimony about this warning was elicited to establish discrim-
inatory animus towards him.
25 Complaint par. 12.
vehicles at the Arlington County courthouse/detention center
from 5 to 4. He did not testify when this meeting occurred or
why it was determined that Araujo, as opposed to another em-
ployee, should lose use of his company truck. It also appears
that at some unspecified point in time, Respondent could have
reassigned the truck driven by Manuel Medrano, rather than
that driven by Araujo (Tr. 1330–1331). In the absence of any
explanation for why it was Araujo who lost use of the company
vehicle, I find this action was discriminatorily motivated.
Lay-offs and terminations of Nestor Sanchez and
Hernan Latapy
Between January 21, 2014 and April 25, 2014 Tito employ-
ees Nestor Sanchez and Hernan Latapy were performing paint-
ing work at the Washington D.C. Convention Center. Sanchez
was one of three employees fired by Respondent in 2012 and
then reinstated, in part due to the efforts of Union Organizer
Sandro Baiza.
On April 25, 2014, Manual Alarcon informed Norbert
Araujo, who had been working in Arlington County, that he
was going to be assigned to the Convention Center and that
Latapy was going to be sent to paint in Maryland. Nestor
Sanchez would be sent to work in Arlington.
Latapy told the D.C. Government supervisor, Juan Jimenez,
about the change. Jimenez insisted that Latapy stay at the Con-
vention Center. Respondent insisted on the change. As a re-
sult, either the D.C. Government kicked Respondent off the job,
or Respondent abandoned the project. Araujo stayed at Arling-
ton and Respondent did not give Latapy or Sanchez any more
work as employees of Tito Contractors. In June 2014, Re-
spondent’s superintendent, Fermin Rodriguez, told Sanchez
that there was plenty of work and suggested that he “fix it with
Tito or with the lawyers” (Tr. 887). Kenneth Brown’s testimo-
ny at transcript 1324–1325 and 1650, as well as Milton Ante-
zana’s at transcript 1741–1744, also indicates that Respondent
had plenty of work for Latapy and Sanchez in the summer of
2014.
Fermin Rodriguez called Latapy on May 22 or 23, and of-
fered him employment as a subcontractor of Respondent, or as
an employee of a subcontractor. Fermin Rodriguez operates a
company called RDI Construction which performs some or all
of its work pursuant to a subcontract with Respondent. Some
employees of Respondent have performed work for RDI, in-
cluding drywall and plumbing work at Kenmore Middle School
in Arlington, Virginia. This record also establishes that indi-
viduals who worked as Tito employees prior to the summer of
2014, such as Jose Granados and Angel Alvarado, were re-
moved from Respondent’s payroll but continued to perform
work for Respondent at other sites, such as the Candlewood
School in Maryland, either as subcontractors or employees of a
subcontractor (GC Exh. 10(b) and R. Exh. 30).
Latapy declined to work for Respondent as a subcontractor.
During this conversation Fermin Rodriguez encouraged Latapy
to accept Respondent’s offer because after the lawsuit was fin-
ished, Maximo Pierola “would fire all those son-of- a-bitches,”
(Tr. 1088–1089).
On June 25, 2014, Respondent terminated Latapy, ostensibly
for refusing to report to work at a job site in Howard County,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Maryland. There is no evidence that Respondent ordered Lat-
apy to report to such a jobsite. Thus, I credit his testimony that
this never happened (Tr. 1095).
New or strictly enforced policy requiring prior high level ap-
proval of overtime work in advance
On October 25, 2013, Respondent issued to its construction
employees a memorandum stating that, prior to working over-
time, employees must get prior approval from either Maximo or
Alex Pierola or Kenneth Brown. Alex Pierola testified that
Respondent had a policy requiring prior approval for overtime
from top management prior to the filing of the FLSA lawsuit.
However, he admitted that this policy was not strictly enforced
until after the suit was filed (Tr. 1435). There is no evidence
that any construction employees had ever been informed that
such a policy existed prior to the filing of the FLSA suit.
Discriminatory and/or retaliatory withholding of overtime work
The General Counsel alleges that Respondent has been with-
holding overtime work from certain employees in a discrimina-
tory manner, and/or to retaliate against them for their protected
activities.
The General Counsel and Respondent in their briefs focus on
different portions of Respondent’s payroll records in arguing
whether or not there was any discrimination against the FLSA
plaintiffs. Much of this evidence is amorphous. However, I
find that Respondent violated the Act in discriminating against
the 7 employees who were identified as plaintiffs prior to No-
vember 2, 2013, by withholding overtime work from them dur-
ing the pay period ending on that date. Indeed, the chart at-
tached to Respondent’s brief as exhibit A establishes discrimi-
nation in assigning or allowing overtime work. Not one of the
construction employees who had been named in the initial
FLSA complaint (Roberto Ayala, Mauricio Bautista, Geremias
Berganza, Hector Delgado, Sabino Diaz, Jose Jimenez, and
Domingo Zamora) worked an hour of overtime that pay peri-
od.26
General Counsel Exhibit 10 and well as Respondent’s chart
establishes that many of Respondent’s employees, who either
had not yet joined the suit, or never joined, worked many hours
of overtime during that pay period. These include: Hector Cor-
tez, 42 hours of overtime; Norberto Araujo, 38 hours; Henry
Castellon 34 hours; Jose Granados, 33 hours; Leonel Rosales
23 hours; Manuel Medrano, 52 hours; and Manuel Rodriguez
21 hours. There is no explanation in this record for this dispari-
ty. Thus, as more fully discussed in the analysis section of this
decision, I find it was discriminatorily motivated consistent
with the threats from Respondent’s managers that the company
would discriminate against the plaintiffs.
I leave to compliance whether or not there was discriminato-
ry allocation of overtime in other pay periods. There is evi-
dence that suggests as much. Certain employees, for example,
Robert Ayala, a party to the FLSA suit, have experienced a
dramatic drop in the number of overtime hours they have
worked since the suit was filed. Respondent has not offered any
explanation as to why this is so (Tr. 1443–1446, GC Exh. 10, p.

26 Respondent was not aware that Luis Palacious had joined the law-
suit until November 13, 2013.
8).
In July 2014 Respondent prohibited any overtime work at the
Arlington County detention center and courthouse. Maximo
Pierola and Manual Alarcon instructed Project Superintendent
Jorge Ramos that if employees had to work on a Saturday, they
would have to take a day off on a weekday (GC Exh. 104).
Respondent discharges Mauricio Bautista27 on August 1, 2014
(Case 05–CA–134285)
Mauricio Bautista worked for Tito Contractors from June 30,
2004, until August 1, 2014. Ever since 2006, he had worked
primarily at the Arlington County detention center, almost al-
ways as a crew leader. Prior to July 25, 2014, Respondent had
never disciplined Bautista.
On July 23, Respondent replaced Bautista as crew leader at
Arlington with Jose Amaya, after Bautista refused to sign a
document stating his liability if his company cell phone was
either lost or damaged. Respondent’s superintendent, Jorge
Ramos, also found Bautista’s crew taking a coffee break on the
jobsite when they may not have been authorized to do so.28
On July 24, Amaya informed Bautista that he was being
transferred to the Candlewood Elementary School in Rockville,
Maryland the next day. According to Respondent’s position
statement (GC Exh. 202), this was to be a temporary assign-
ment. Bautista was to return to Arlington upon completion of
his assignment at Candlewood. Unlike other temporary as-
signments of this nature, Respondent did not provide Bautista
with a company vehicle to get to the Candlewood jobsite.
Maximo Pierola decided to transfer Bautista from Arlington
to Candlewood. Jorge Ramos, Respondent’s superintendent
overseeing the Arlington contracts, did not want Bautista trans-
ferred (GC Exh. 206). Ramos was concerned as to whether
employees slated to replace Bautista had the proper clearances
to work inside the detention center. Manual Alarcon, who ap-
parently outranked Jorge Ramos, insisted that Bautista, not any
other employee, go to Candlewood. There is no explanation for
this insistence. Bautista was not happy with this transfer since
it doubled his commuting time, a fact of which Respondent was
most likely aware (GC Exh. 206).
At Candlewood, Respondent’s employees were hanging
double doors in door frames. Contrary to the suggestions of
Respondent, the record establishes that hanging the double
doors at Candlewood was not a routine task that any of Re-
spondent’s experienced employees could perform. Milton
Antezana, Respondent’s jobsite superintendent at Candlewood,
testified as to how Bautista ended up at his project:
Well, I called the office because we need someone
who knows to install the continuing hinge. You cannot
make the mistake, because if you made mistakes, that
hinge is not good anymore.
And I was specific when I called out to say I need a
carpenter who knows. And they told me I got one person
who he has a lot of experience in this. And, okay, I say fi-

27 Bautista’s full name is Jose Mauricio Lopez Bautista. In Re-
spondent’s payroll records (GC Exh. 10(b), he is listed as Lopez Bau-
tista, Jose M.
28 Jorge Ramos did not testify in this proceeding.
TITO CONTRACTORS, INC. 21
ne, then that will be great for me. So that’s when they sent
him.
(Tr. 1685–1686; also see Tr. 1690–1691, 1726.)
Antezana also testified that the reason he asked for someone
who knew how to install a continuous hinge was that Jose Gra-
nados, who worked at the site from January to July made a lot
of mistakes (Tr. 1719–1720, 1733). 29
In fact Bautista did not have any experience in installing
doors with a continuous hinge. There is no evidence that Re-
spondent made any effort to determine whether Bautista or any
of its other employees has the experience and skills that Ante-
zana was seeking. After Respondent terminated Bautista, it did
not send Antezana a carpenter to replace him (Tr. 1717–1718).
This suggests that it was not imperative to transfer Bautista to
Candlewood and that the decision to send him to Candlewood
was a “set up” designed to provide an excuse to terminate
him.30
Bautista did not report to Candlewood on Friday, July 25 as
directed. He emailed Superintendent Manual Alarcon at 5:56
a.m. that he was ill and could not report to work. Pursuant to
Alarcon’s direction, Bautista forwarded his email to the job
superintendent, Milton Antezana.
Bautista reported to Candlewood on Monday, July 28. Ante-
zana told him to hang a double door on the building exterior.
Bautista told Antezana he had never erected a door like this
before. The door has a 79-inch continuous hinge. Bautista had
hung doors before, but only the type with several 4 ½ inch
hinges. Moreover the double door did not come with a pre-
manufactured door frame which corresponding holes already
drilled. The installer had to line up the holes in the hinge and
drill properly aligned holes into the door frame, before in-
stalling the screws through the holes in the hinge and the door
frame.

29 Jose Granados worked at Candlewood as late as July 18, 2014, R.
Exh. 30. Granados was an employee of Tito Contractors through June
14 and then apparently began working for Respondent as a contractor,
rather than as an employee (GC Exh. 10 (b)). Respondent’s payroll
records show that Granados worked as a Tito employee doing carpentry
work at Candlewood (Job # OMD –C-13001 500X050, GC Exh. 102,
p. 19) as early as the pay period ending December 28, 2013 and
through the pay period ending June 14, 2014. His wage rate was
$15.50 per hour. Bautista’s wage rate was $17 per hour. Angel Al-
varado, who performed carpentry work at Candlewood from as early as
April 19, through July 2014 was paid $13 and then $14 per hour. After
the pay period ending July 12, 2014, Alvarado also appears to have
worked at Candlewood as a subcontractor because he no longer appears
on Respondent’s payroll records.
I note that GC Exh. 10 and 10(a) are Respondent’s payroll records
from pay periods prior to December 14, 2013. GC Exh. 10(b) are the
payroll records for the pay period ending December 14, 2013 through
August 9, 2014. In the bound exhibits, GC 10 (a) and (b) are in a sepa-
rate binder from GC Exh. 10, which is for exhibits admitted at the
September 11 and 12 sessions. The manner in which they are bound
makes it very difficult to read the dates. However, this can be done
more easily from the electronic version of the exhibits.
30 There is also no explanation for why other employees, such as
Francisco Garza, who had performed carpentry work at Candlewood
between December 2013 and March 2014, were not sent to that site in
July, instead of Bautista, or to replace Bautista (GC Exh. 10(b).
On July 28, Bautista and Angel Alvarado hung 2 double
doors. The next day, Tuesday, July 29, Bautista hung one dou-
ble door by himself. At least one of the screws attaching the
door hinge to the door frame was not properly aligned. At
some point neither of the two chargers for his drills were
charged. On Wednesday, when Bautista reported to work,
Antezana told him he was not supposed to be there. However,
Antezana then asked Bautista if he would help install some
door frames. Bautista declined on the grounds that he was not
authorized to be at the site that day. Later that day, Bautista
spoke to Superintendent Fermin Rodriguez, who offered to seek
authorization for Bautista to work that day at Candlewood.
Bautista told Fermin that he was already too far from Candle-
wood and did not want to go back.
On Thursday, July 31, Antezana gave Bautista two doors to
hang. After drilling the holes for the screws and installing the
screws, Bautista asked Antezana for help in lifting the doors.
The screws were not properly aligned and Antezana had diffi-
culty getting one screw out.
Antezana told Bautista that he would have to tell Respond-
ent’s office that no doors had been erected that day. He also
handed Bautista a warning for being absent on July 25 and not
providing a doctor’s note.
At 5:30 p.m. on July 31, Manual Alarcon called Bautista and
told him that Antezana did not want him working at Candle-
wood because he didn’t know how to hang doors. On August
1, 2014, Respondent’s superintendent, Alfonso Caviedes, called
Bautista and told him he had been terminated. Caviedes read
Bautista a letter signed by Respondent’s general manager, Ken-
neth Brown. The letter stated that Maximo Pierola directed
Brown to terminate Bautista because of “his failure to perform
basic carpentry duties such as installing door frames and hang-
ing doors at your last job assignment.” (GC Exh. GC 188(a).)
Analysis
III. THE ALLEGED SECTION 8(A)(3) AND (1) VIOLATIONS
General Principles
Each of the alleged violations must be analyzed independent-
ly; however, the context in which they occurred must also be
considered. Related unfair labor practices are highly relevant
in determining both the credibility of witnesses and Respond-
ent’s motive with regard to a particular allegation. Unlawful
discrimination against one prounion employee based on anti-
union animus often supports an inference that the same animus
motivated its actions against other prounion employees, Em-
bassy Vacation Resorts, 340 NLRB 846, 848 (2003). This is
particularly true where, as in this case, Respondent’s obvious
discrimination against several of its prounion employees estab-
lishes hostility to unionization and employees’ Section 7 rights,
See NLRB v. DBM, Inc., 987 F. 2d 540 (8th Cir. 1993); Reeves
Distribution Service, 223 NLRB 995, 998 (1976).
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) that animus to-
wards the protected activity was a substantial or motivating
reason for the employer’s action.
However, it is not always the case that the General Counsel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
must establish that an individual discriminatee engaged in un-
ion or other protected activity or that a Respondent was aware
of an individual employee’s union activity. For example,
where an employer institutes an unprecedented mass discharge
in the context of a union organizing campaign, knowledge of
each employee’s protected activity is unnecessary for the Gen-
eral Counsel in proving illegal discrimination. Indeed, the
knowledge of any of the individual’s protected activities may
be unnecessary, as in this case, when the employers is aware of
union or other protected activity, and has, as in this case, suspi-
cions as who is involved and bears considerable anti-union
animus, Hunter Douglas, Inc., 277 NLRB 1179 (1985), enfd.
804 F.2d 808 (3d Cir. 1986). Moreover, in the context of an
organizing drive, it is a violation of Section 8(a)(3) to discharge
a neutral employee in order to facilitate or cover-up discrimina-
tory conduct against known union supporters, See Bay Corru-
gated Container, 310 NLRB 450, 451 (1993), enfd. 12 F. 3d
213 (6th Cir. 1993).
Once the General Counsel makes this initial showing, the
burden of persuasion shifts to the Respondent to prove its af-
firmative defense that it would have taken the same action even
if the employees had not engaged in protected activity, Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir.
1981); La Gloria Oil & Gas Co., 337 NLRB 1120 (2002).
Respondent makes much of the fact that many of its employ-
ees who joined the FLSA suit are not alleged discriminatees.
However, it is well established that an employer's failure to
take adverse action against all union supporters, or employees
who engaged in other protected activity, does not disprove
discriminatory motive, otherwise established, for its adverse
action against a particular employee, See NLRB v. Nabors, 196
F. 2d 272, 276 (5th Cir. 1952); Master Security Services, 270
NLRB 543, 552 (1984); Volair Contractors, Inc., 341 NLRB
673, 676 fn. 17 (2004). Moreover, according to Fermin Rodri-
guez’s statement to Hernan Latapy at Tr. 1088–1089 that Max-
imo Pierola would fire all the SOBs when the lawsuit was over,
this may just be a matter of time and opportunity.
The 8(a)(3) allegations involving Respondent’s construction
employees
All of the alleged discriminatees who worked in Respond-
ent’s construction division, Mauricio Bautista, Jose Amaya,
Roberto Ayala, Jose Diaz, Geremias Berganza, Hector Delga-
do, Sabino Diaz, Jose Jimenez, Hernan Latapy, Luis Palacious,
Nestor Sanchez, and Domingo Zamora engaged in protected
activity both by joining in the class action lawsuit against Re-
spondent under the FLSA and by supporting the Union.31 Re-
spondent was aware of the protected activity of all of these
employees.
Moreover, the record is replete with evidence of Respond-
ent’s animus to these employees and their protected activities.
For example, Hernan Latapy’s testimony that Fermin Rodri-
guez told him that Respondent’s owner, Maximo Pierola
“would fire all those son-of- a-bitches,” after the lawsuit is

3 1 Concertedly filing and maintaining a lawsuit under the FLSA is
concerted activity protected by the NLRA, U Ocean Palace Pavilion,
Inc. 345 NLRB 1162 (2005).
finished, is uncontroverted. Fermin Rodriguez, when called as
a witness by the General Counsel, neither denied making this
statement nor testified that he had no basis for making the
statement. I infer that Maximo Pierola informed Fermin Rodri-
guez that this is precisely what he intended to do.
On this basis alone, I find that the General Counsel has met
his initial showing of discrimination with regard to all the al-
leged adverse actions. Moreover, largely because Respondent
put on no evidence to prove an affirmative defense in many of
these instances I find that Respondent violated the Act as al-
leged. To the extent Respondent has offered an explanation for
the adverse actions taken against the alleged discriminatees, I
find these explanations to be pretextual.
As to specific employees, the record shows as follows:
Mauricio Bautista: Respondent offered no testimony
as to why it decided to terminate Mauricio Bautista as op-
posed to transferring him back to his job at Arlington
which he had performed acceptably for years. Moreover,
the record establishes that Respondent treated Bautista
disparately than other employees who mishandled a par-
ticular assignment. Even with regard to the Candlewood
project, it is clear that Jose Granados and others performed
shoddy work and were not disciplined at all. At a jobsite
in Alexandria, several employees, particularly Francisco
Garza, did such poor work that Respondent lost its con-
tract. However, there is no evidence that any of them was
disciplined. Finally, this record makes it very clear that
Maximo Pierola’s animus toward the protected activity of
all employees was particularly focused on the “rotten ap-
ples, spoiling the whole bunch,” Bautista and Domingo
Zamora.
Hernan Latapy and Nestor Sanchez: There is absolute-
ly no evidence that Respondent did not have work for Lat-
apy and Sanchez. Indeed, the record strongly suggests just
the opposite.
Norberto Araujo: There is no evidence as to why a
company vehicle was taken away from Araujo as opposed
to other employees the Arlington project. Moreover the
timing of this action strongly suggests discriminatory mo-
tive.
Jose Amaya: Respondent’s disparate treatment of
Amaya’s filing job reports late as opposed to its inaction
with regard to other employees who also filed the reports
late strongly suggests discriminatory motive.
As to the withholding of overtime from the alleged discrimi-
natees: the uncontradicted evidence shows that Respondent
told these employees it would discriminate against them and
that it did so.
I find that Respondent violated the Act as alleged with re-
gard to each of these employees.
By restricting the overtime of its employees, and instituting a
policy requiring the advance approval of overtime by Respond-
ent’s top management, Respondent violated
Section 8(a)(3) and (1)
Respondent has a facially appealing defense to the allegation
that it violated the Act by instituting the policy requiring top
TITO CONTRACTORS, INC. 23
management approval of all overtime. Of course, Respondent
had to insure that it was in compliance with the FLSA regard-
less of whether or not it complied with this statute before its
employees sued it. However, under Board law, specifically
Wright Line, 251 NLRB 1083 (1980), it is not enough for an
employer to present a legitimate reason for its actions. Once, as
in this case, where the General Counsel has made an initial
showing that discrimination and or retaliation for protected
activity was a motivating factor in an adverse employment
action, the respondent employer must establish that it would
have taken the steps it took regardless of the protected activity.
The Act does not allow an employer to substitute “good rea-
sons” for the “real reasons.” In order to meet its burden, once
the General Counsel has made his initial showing of discrimi-
nation, it is not enough for the Respondent to show that it could
have taken action for a non-discriminatory reason, it must es-
tablish that it in fact took the action for such legitimate purpose,
Structural Container Industries, 304 NLRB 729,730 (1991);
Yellow Ambulance Service, 342 NLRB 804, 805–806 (2004);
Also see Watsonville Register-Pajaronian, 327 NLRB 957–961
(1999) [compliance with the FLSA did not necessitate the em-
ployer taking the actions it took in violation of Section 8(a)(5)].
Here, there is no question that Respondent bore tremendous
animus towards the protected activity of its employees, and
indeed took discriminatory action against some of the employ-
ees who participated in the FLSA lawsuit. Respondent has put
forth one possible way of complying with the FLSA. It has put
forth no evidence as to why it chose this manner of complying
with that statute, as opposed to, for instance, paying them the
wages they were entitled to under the FLSA.
Alleged Independent 8(a)(1) violations regarding the construc-
tion employees
The test of whether a statement violates Section 8(a)(1) is
whether Respondent’s conduct would reasonably tend to inter-
fere with, threaten, or coerce employees in the exercise of their
Section 7 rights, Alliance Steel Products, 340 NLRB 495
(2003); Southwestern Bell Telephone Co., 251 NLRB 625,
631–632 (1980). I find that the following statements by Re-
spondent are violative under this standard:
Superintendant Fermin Rodriguez’ statements to Domingo
Zamora, Geremias Berganza, and others in October 2013 that
employees who participated in the FLSA lawsuit would not be
allowed to work overtime.
Owner Maximo Pierola’s statements to Jose Amaya on Oc-
tober 11, 2013, that he should think about his family before
taking legal action against Respondent;
Owner Maximo Pierola’s statements to Geremias Berganza
on October 11, that employees were stabbing him in the back
by filing the FLSA lawsuit and that he did not want backstab-
bers in his company and that there were thousands of jobs
elsewhere.
Maximo Pierola’s statements to employees on December 24,
2013, indicating that their workplace issues could be resolved if
they eschewed union representation.
Owner Maximo Pierola’s February 27, 2014, characteriza-
tion of Mauricio Bautista and Domingo Zamora as “rotten ap-
ples” which was based on their union and other protected activ-
ity.
Owner Pierola’s threat on February 27 to close his company
or subcontract out most or all of his work.
Maximo Pierola’s statement to Geremias Berganza that he
could sue him for defamation and would fire him in person.
Fermin Rodriguez’ statement to Nestor Sanchez indicating
that he could get work if he “fixed it” with Tito or his lawyers.
This was an attempt to coerce Sanchez from withdrawing from
the lawsuit.
Fermin Rodriguez’ statement to Hernan Latapy that Maximo
Pierola would fire all the SOBs when the lawsuit was over.
Legal Analysis with regard to the 5 discharges of employees at
the Shady Grove Recycling Center
In an approximately 6-week period from October 30, 2013,
to December 13, 2013, Respondent discharged 5 of its employ-
ees at the Shady Grove recycling center. These discharges
occurred during the Union’s organizing campaign and all five
engaged in union activity. Four of these employees were re-
moved from that site at the request of MES, which had the con-
tractual right to request their removal. The number of discharg-
es and requests for removal of employees by MES was unprec-
edented.
The record shows that MES rarely requested that Respondent
remove an employee prior to October 30. Mark Wheeler had
been MES’ operations manager at Shady Grove for 11 years.
He could specifically recall requesting the removal of only one
employee, Sandra Melgar between 2010 and October 30,
2013.32 The discriminatees in this case were treated in a much
different manner than was Melgar. Wheeler’s day planner
shows that he became concerned about her performance on
January 7, 2013. He noted further complaints about Melgar’s
performance on February 18, 2013, but did not ask for her re-
placement until April 18, 2013.
Wheeler’s conduct with regard to Keila Diaz in July 2011 al-
so offers a sharp contrast with the conduct of Wyatt and
Wheeler with regard to the discriminatees. Diaz was found
sleeping in her car during work time on July 5, 2011. He
emailed Berganza’s predecessor that this type of behavior
would not be tolerated, but did not request her removal (R. Exh.
2).
There is no evidence that David Wyatt, Wheeler’s superior,
had ever requested that Respondent remove an employee prior
to October 30, 2013. As set forth below, I find that MES’ re-
quest for the removal of 4 of Respondent’s employees during a
union organizing drive was not a coincidence.
It is true that during the period in question, MES had con-
cerns about productivity at the Shady Grove facility. In part
(GC Exh. 14). The 5 discriminatees were not the low producers
on those tests. Indeed, Maria Ellen Chavez was the highest
producer and Reyna Sorto and Aracely Ramos were also among
the high producers. There is no convincing nondiscriminatory
explanation for why Mark Wheeler started monitoring Reyna

32 Andrea Monroy abandoned her job on January 18, 2013 (GC Exh.
82). There is no evidence that MES requested her removal. Moreover,
Monroy received three warnings for misconduct, while some of the
discriminatees in this case were removed from the site and discharged
without warning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Sorto’s and Yasmin Ramirez’ productivity as opposed to the
employees whose productivity was low even when they knew
they were being tested, such Sylvia Sandino, Miriam Mejia,
and Adriana Villavicencio.33 There is absolutely no non-
discriminatory correlation between MES’ productivity concerns
and its requests for the removal of the discriminatees.34
There is no evidence that Respondent positively knew of the
union activities of any of the discriminatees until November 15,
2013, when the Union identified them in a letter to Respondent.
By that time Maria Sanchez and Aracely Ramos had already
been discharged. Reyna Sorto may also have been discharged
before Respondent knew for sure that she supported the Union.
Respondent had been informed of Yasmin Ramirez’ and Maria
Ellen Chavez’ support for the Union before it discharged them.
As stated earlier, Tomas Berganza, Respondent’s supervisor
at Shady Grove knew of union activity and at least suspected
that all five discriminatees supported the Union before they
were discharged. Also as discussed at the outset of this deci-
sion, I find that Berganza began operating as Respondent’s
agent in opposing union organizing before Maria Sanchez’s
discharge on October 30, 2013.
Consistent with the Wright Line analysis above, I find that
MES would not have requested the removal of Maria Sanchez,
Aracely Ramos, Reyna Sorto, and Yasmin Ramirez35 but for
the involvement of Respondent. I find that this involvement
was motivated by Respondent’s animus towards the known or
suspected union activity and/or other protected activity (com-
plaining about the goggles).
Respondent has not shown that MES would have, inde-
pendently, without its involvement, have sought the removal of
the five alleged discriminatees from the Shady Grove jobsite.
This record shows that all the information that Mark Wheeler
and David Wyatt, both of whom speak little or no Spanish,
based their removal requests, came from Tomas Berganza.
Thus, each of these requests was influenced by Respondent’s
antiunion animus.
I find that the Respondent’s termination of these employees,
the removal of Maria Chavez from the Shady Grove site and
her termination were also motivated at least in part by the dis-
criminatees’ union and other protected activity (e.g. Chavez’
complaining directly to MES about the goggles).

33 Meija and Villavicencio are identified as union supporters in the
Union’s November 14, 2013 letter to Respondent.
34 There is a correlation, however, between Respondent’s awareness
of the FLSA suit and MES’ monitoring of Yasmin Ramirez. I find that
the impetus for this monitoring came from Respondent and was related
to her husband’s participation in the FLSA suit. Discrimination against
an employee’s family members in such circumstances violates the Act,
PJAX, 307 NLRB 1201, 1203–1205 (1992), enfd. 993 F.2d 378 (3d Cir.
1993).
35 Tomas Berganza’s effort to have Yasmin Ramirez transferred
from Shady Grove to Cockeysville, is somewhat inconsistent with the
notion that MES request that Ramirez be removed from Shady Grove
originated by him. However, the unprecedented nature and number of
the MES removal requests during the organizing drive leads me to
conclude that none of these requests may have made without the in-
volvement of Respondent.
REMEDY
The Respondent, having discriminatorily discharged five of
its recycling employees, must offer them reinstatement and
notify the Maryland Department of Environmental Services in
writing that it has no objection to their reinstatement to their
former positions or substantially equivalent positions at the
Shady Grove recycling center. Respondent must also make
them whole for any loss of earnings and other benefits. Back-
pay shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatee(s)
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Don Chavas d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended36
ORDER
The Respondent, Tito Contractors, Washington, D.C., its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying-off or otherwise discriminating
against any employee for supporting International Union of
Painters and Allied Trades, District Council 51, or any other
union, or for engaging in other protected concerted activity,
including participating in a class action lawsuit.
(b) Coercively interrogating any employee about the union
support or union activities of that employee or any other em-
ployee.
(c) Coercing employees regarding their participation in pro-
tected concerted activity such as participating in a class action
lawsuit.
(d) Promising benefits to employees if they refrain from en-
gaging in union or other protected activity, such as a class ac-
tion lawsuit.
(e) Threatening to withhold overtime from employees who
engage in protected activity, including participating in a class
action lawsuit.
(f) Withholding overtime from employees who participate in
a class action lawsuit.
(g) Initiating a policy requiring high-level management ad-
vance approval of overtime work in response to protected activ-
ity, or strictly enforcing such a policy which had not been en-
forced prior to the filing of a collective- action lawsuit or other
protected activity.
(h) Maintaining and enforcing a rule which prohibits em-

36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
TITO CONTRACTORS, INC. 25
ployees from taking complaints about their working conditions
outside their “chain of command.”
(i) Taking any action to encourage employees of the Mary-
land Environmental Services Department to request removal of
employees from a jobsite in retaliation for any suspected or
actual union or other protected concerted activity.
(j) 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 the Board’s Order, offer
Maria Sanchez, Aracely Ramos, Reyna Sorto, Yasmin Ramirez,
and Maria Chavez 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 privi-
leges previously enjoyed.
(b) Within 14 days from the date of the Board’s Order notify
the Maryland Environmental Services Department in writing
that it has no objection to the reinstatement of Maria Sanchez,
Aracely Ramos, Reyna Sorto, Yasmin Ramirez, and Maria
Chavez 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
and request their return to the Shady Grove (Derwood), Mary-
land facility.
(c) Within 14 days from the date of the Board’s Order, offer
Mauricio Bautista, Hernan Latapy, and Nestor Sanchez 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 en-
joyed.
(d) Make Maria Sanchez, Aracely Ramos, Reyna Sorto,
Yasmin Ramirez, Maria Chavez, Mauricio Bautista, Hernan
Latapy, Nestor Sanchez, and Jose Amaya whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them as specified in the remedy portion of this
decision.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
removal from the Shady Grove jobsite and discipline of Maria
Sanchez, Aracely Ramos, Reyna Sorto, Yasmin Ramirez, and
Maria Chavez and within 3 days thereafter notify them in writ-
ing that this has been done and that their discharges and illegal
discipline and removals will not be used against them in any
way.
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges or
other discipline or adverse action concerning Mauricio Bau-
tista, Hernan Latapy, Nestor Sanchez, and Jose Amaya and
within 3 days thereafter notify them in writing that this has
been done and that their discharges and illegal discipline and
lay-offs will not be used against them in any way.
(g) Within 14 days from the date of the Board’s Order, re-
store to Norberto Araujo the use of a company vehicle compa-
rable to the vehicle he drove prior to April 2013.
(h) 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 rec-
ords, 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.
(i) Within 14 days after service by the Region, post at its
Washington, D.C. office and the Shady Grove (Derwood),
Maryland recycling facility, copies of the attached notice
marked “Appendix”37 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on the
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, as its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 11,
2014.
(j) Within 14 days after service by the Region, hold a meet-
ing or meetings during working hours, which will be scheduled
to ensure the widest possible attendance of employees, at which
time the attached notices marked “Appendix” is to be read to its
employees by a Board agent in English, Spanish and any other
language spoken by more than three employees in the presence
of Respondent’s President/Chief Executive Office or highest
ranking human resources official.
(k) 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.
Dated, Washington, D.C., November 4, 2014.
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 No-
tice.

37 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a 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, lay-off or otherwise discriminate
against any of you for supporting International Union of Paint-
ers and Allied Trades, District Council 51, or any other union,
or for engaging in other protected concerted activity, including
participating in a class action lawsuit.
WE WILL NOT coercively question you about your union sup-
port or activities or the protected activities of you or other em-
ployees.
WE WILL NOT promise you benefits if you refrain from union
or other protected concerted activity, such as participating in a
class action lawsuit.
WE WILL NOT otherwise coerce you with regard to your union
or other protected activities by (1) threatening to withhold over-
time work; (2) actually withholding overtime work; or (3) insti-
tuting or strictly enforcing a rule requiring you to seek high-
level management approval before working overtime.
WE WILL NOT coerce, restrain, or interfere with you com-
municating with our clients or other third parties about your
wages, hours or other terms and conditions of employment.
WE WILL NOT discipline you or threaten to discipline you for
doing so.
WE WILL NOT do anything to encourage employees of the
Maryland Environmental Services Department, or any other
entity to request your removal from a job or jobsite in retalia-
tion for any suspected or actual union or other protected con-
certed activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind our rule that prohibits you from speaking to
representatives of the Maryland Environmental Services De-
partment, or any other entity regarding your wages, hours and
terms and conditions of employment.
WE WILL, within 14 days from the date of this Order, offer
full reinstatement to Maria Sanchez, Aracely Ramos, Reyna
Sorto, Yasmin Ramirez ,and Maria Chavez their former jobs or,
if those jobs no longer exist, to a substantially equivalent posi-
tion, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL request in writing that the Maryland Environmental
Services Department reinstate Maria Sanchez, Aracely Ramos,
Reyna Sorto, Yasmin Ramirez, and Maria Chavez to their for-
mer jobs at the Shady Grove (Derwood), Maryland recycling
station and state that we have no objection to their being re-
turned to these positions.
WE WILL, within 14 days from the date of this Order, offer
full reinstatement to Mauricio Bautista, Hernan Latapy, and
Nestor Sanchez to their former jobs or, if those jobs no longer
exist, to a substantially equivalent position, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Maria Sanchez, Aracely Ramos, Reyna Sorto,
Yasmin Ramirez, and Maria Chavez whole for any loss of earn-
ings and other benefits resulting from their discharges and other
discrimination, less any net interim earnings, plus interest com-
pounded daily.
WE WILL make Mauricio Bautista, Hernan Latapy, Nestor
Sanchez, and Jose Amaya whole for any loss of earnings and
other benefits resulting from their discharges and other discrim-
ination, less any net interim earnings, plus interest compounded
daily.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge or
layoffs and discipline of Maria Sanchez, Aracely Ramos,
Reyna Sorto, Yasmin Ramirez, Maria Chavez, Mauricio Bau-
tista, Hernan Latapy, Nestor Sanchez, and Jose Amaya and WE
WILL, within 3 days thereafter, notify them in writing that this
has been done and that the discharges, layoffs and discipline
will not be used against them in any way.
WE WILL NOT restore to Norberto Araujo the use of a compa-
ny vehicle comparable to the vehicle he drove prior to April
2013.
TITO CONTRACTORS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05–CA–119008 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.