Trade West Construction, Inc.

National Labor Relations Board - Board Decisions

May 14, 2003

339 N.L.R.B. 12 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
Trade West Construction, Inc. and Carpenters Con-
tractors Cooperation Committee. Case 28–CA–
17087
May 14, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 7, 2001, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel 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 conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Trade West Construction,
Inc., Mesquite, Nevada, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
Substitute the attached notice for that of the adminis-
trative law judge.

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 Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
2 Chairman Battista does not pass on the judge’s finding that em-
ployee Daniel Santos was engaged in “concerted” protected activity
when he discussed wages one-on-one with Quad C Representative Juan
Gonzalez on the jobsite on September 25. Even if the conversation
between Gonzalez (a nonemployee) and Santos was not itself concerted
activity, the Respondent believed that it was concerted activity. The
Respondent, through Duane Linge, also saw Gonzalez talking to other
employees. Thus, the Respondent believed that the conversation be-
tween Gonzalez and Santos was part and parcel of conversations be-
tween Gonzalez and other employees. Accordingly, the Respondent’s
subsequent interrogation and threats to Santos were violations of Sec.
8(a)(1). See Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992); Met-
ropolitan Orthopedic Associates, P.C., 237 NLRB 427, 429 (1978).
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 any 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 or otherwise discriminate
against Daniel Santos, Louis Brito, or any other em-
ployee, for engaging in concerted activity protected un-
der the Act, including protected activity involving the
Carpenters Contractors Cooperation Committee.
WE WILL NOT interrogate our employees about their
protected concerted activities.
WE WILL NOT threaten our employees with the loss of
their jobs or otherwise threaten, restrain, or coerce them
because they engage in protected concerted activity.
WE WILL NOT create the impression that we are spying
on our employees’ protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Daniel Santos and Louis Brito full rein-
statement 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.
WE WILL make Daniel Santos and Louis Brito whole
for any loss of earnings and other benefits suffered as a
result of our discrimination against them, less any net
interim earnings, plus interest.
339 NLRB No. 7
TRADE WEST CONSTRUCTION, INC. 13
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Daniel Santos and Louis Brito, and WE
WILL, within 3 days thereafter notify these employees in
writing that this has been done and that their discharges
will not be used against them in any way.
TRADE WEST CONSTRUCTION, INC.

Joel C. Schochet, Esq., for the General Counsel.
Robert L. Murphy, Esq., for the Respondent.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issues
presented are whether certain of the Respondent’s actions in-
volving its employees (particularly Daniel Santos and Louis
Brito) violated Section 8(a)(1) of the National Labor Relations
Act (the Act).2
I. JURISDICTION
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE PARTIES TO THE PROCEEDING
The Respondent, a Nevada corporation, is a general con-
struction contractor with a place of business in Mesquite, Ne-
vada. The Respondent is a nonunion contractor. Respondent’s
supervisors and agents relevant to this case are owner, Todd
Leavitt, office manager, Harold (Nick) Janneck, and crew chief,
Duane Linge.
Daniel Santos and Louis Brito were Respondent’s employees
who worked on Linge’s crew. They were, with single excep-
tions, not assigned any work after March 2, 2001. The Re-
spondent’s motivation for not assigning them work is the cen-
tral issue in this case.
The Charging Party, Carpenters Contractors Cooperation
Committee (referred to as Quad C), is an organization that is
funded by construction contractors that employ union carpen-
ters. The purpose of Quad C is to monitor nonunion contrac-
tors and insure that they pay prevailing wages. Juan Gonzalez
is the Quad C representative who is involved in this case.
III. THE EMPLOYEES’ CONCERTED ACTIVITIES
A. Work of Santos and Brito
Daniel Santos began working for Respondent on a continu-
ous basis in July 2000. Louis Brito began working for Respon-
dent shortly thereafter. Brito and Santos did various types of
work for Respondent, including concrete finishing, carpentry,
painting, roofing, and general laboring. They worked at several
jobsites for the Respondent and it is stipulated that the employ-
ees commonly moved from job to job.
Santos and Brito were working at the Mesquite Senior and
Community Center in mid-December 2000. Brito testified that

1 This case was heard at Las Vegas, Nevada, on October 4–5, 2001.
All dates in this decision refer to the year 2001 unless otherwise stated.
2 29 U.S.C. § 158(a)(1).
in December 2000, Todd Leavitt gave him a bonus and said,
“You guys ain’t going anywhere . . . . We have plenty of work
lined up.”
B. January 25
On January 25, Quad C Representative Juan Gonzalez vis-
ited the Senior Center construction site. Gonzalez knew that
there was a prevailing wage job at the site and he went there to
satisfy himself that the employees were being properly paid.
Gonzalez testified that he encountered Respondent’s owner,
Leavitt. According to Gonzalez he introduced himself to
Leavitt, gave him his business card, explained his purpose for
being at the site, and requested permission to speak to the em-
ployees. Gonzalez testified that Leavitt said that Gonzalez
could speak to the employees. Leavitt denied meeting Gon-
zalez on this date. Considering the relative demeanor of these
witnesses and their respective recall of events, I credit Gon-
zalez’ testimony as to what occurred on January 25.
Gonzalez left Leavitt and went through the jobsite where he
encountered Respondent’s employee Shane Hoopes. They
talked briefly and he then saw Respondent’s foreman, Linge.
Gonzalez testified that he asked Linge if he knew that the job
was a prevailing wage project. Gonzalez said that drywall
work was carpenter work. Linge told him that the prevailing
wage fluctuated between laborer and carpenter rates of pay.
Gonzalez asked if the drywall work that Linge was doing was
being paid on an hourly basis and Linge said it was.
Gonzalez next spoke with Santos who was installing drywall.
Gonzalez testified that he noticed that Leavitt was nearby sit-
ting in his truck and looking in their direction. Gonzalez asked
Santos if he knew that the project was covered by prevailing
wage considerations, and Santos said he did. Gonzalez asked
Santos how much he was getting paid and Santos replied that
he was getting paid piecework. Gonzalez told Santos that get-
ting paid piecework was legal as long as it equaled or surpassed
the prevailing wage. Gonzalez told Santos that he was from
Quad C and gave Santos his business card. Santos and Gon-
zalez agreed that they would meet again at lunchtime. As Gon-
zalez left, he noticed that Leavitt was still in his truck and look-
ing in his direction. Gonzalez went up to Leavitt and thanked
him for allowing him to speak to Leavitt’s employees. Gon-
zalez said that he would try to get back to the jobsite in the
future and he left.
Shortly after Gonzalez left Linge walked over to Santos and
asked if Gonzalez had spoken to him. Santos said he had and
Linge asked what Gonzalez wanted. Santos said that Gonzalez
had asked him if he was making a lot of money and that Santos
had said no, he was working by piece. Santos testified that
Linge appeared angered by what Santos had told Gonzalez.
Leavitt soon talked to Santos and asked what he had said to
Gonzalez. Santos replied that he told Gonzalez that he was
getting paid by the piece. Santos testified that Leavitt’s eyes
got wide and Leavitt said that he knew that Santos was lying.
Leavitt told Santos that he should go home and look for another
job. Leavitt then told Santos to get the other employees to-
gether so he could speak to them.
Leavitt testified that he did ask Santos what he had discussed
with Gonzalez. Leavitt recalled that Santos cryptically replied

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
that he had told Gonzalez “that he (Santos) was helping us (the
Respondent) out.” Leavitt testified that he did not understand
what Santos meant by this statement and he asked him to ex-
plain. Leavitt said that Santos could not clarify what he had
told Gonzalez. On cross-examination, Leavitt was asked if he
said anything else to Santos and he replied that he could not
remember. Leavitt was an uncertain witness who could not
recall the details of his discussion with Santos. He could not
remember if he threatened to discharge or lay off Santos, but he
did not think he did. I have considered the comparative de-
meanor of Santos and Leavitt and found Santos’ testimony to
be persuasive. Santos was certain of the details of the conver-
sation and was forthcoming in his answers to questions. Leavitt
demonstrated a very cloudy recollection of the dialogue and
admittedly could only remember what he might have said. I
credit Santos’ version of what was said in this conversation.
After questioning Santos, Leavitt met with the employees in
the Respondent’s job trailer. Employees Santos, Louis Brito,
Rulan (Sam) Lee, Claude (Eugene) Burnette, Ramon Sanchez,
and Shane Hoopes were present along with Supervisor Linge.
Leavitt admittedly asked the employees who had spoken to
Gonzalez. Linge, Hoopes, and Santos indicated they had.
Leavitt asked them what they had said to Gonzalez. Hoopes
and Linge said that they told Gonzalez they were being paid
hourly. Leavitt asked Santos if he knew who Gonzalez was.
Santos said that he did not know who Gonzalez was because
Gonzalez wore a hardhat and was dressed like a worker. Brito
recalled that Leavitt said to Santos that if he found out that
Santos was lying about not knowing who Gonzalez was, Santos
would be looking for another job. Leavitt said that he had
given the employees the choice of doing the drywall work so
that they could stay busy. He told them he had not bid the dry-
wall installation high enough for outside contractors to perform
the work and it was benefiting both the Respondent and the
employees to do the drywall work. Brito testified that Leavitt
said that now there was a problem because Santos had
“screwed up” and told Gonzalez that the employees were work-
ing on a piecework basis when he knew it was not legal to do
so.
Leavitt testified that he was worried about the piecework pay
possibly being illegal and he conceded he might have said that
Santos screwed up by telling Gonzalez he was being paid
piecework. Brito recalled that Leavitt said that he did not know
why the employees were whining about doing the job on a
piecework basis when he was doing them a favor by keeping
them working until other jobs started. At the end of the meet-
ing, Leavitt asked Santos what he would say if Gonzalez came
back again. Before Santos could answer Brito spoke up and
said that, “Daniel is going to tell the goddamned truth, right,
Daniel?” Brito then walked out of the trailer.
Leavitt professed a murky recollection of what he said at the
employee meeting. In contrast, I found Brito and Santos had
good recall of what their employer told them. I credit their
testimony as to what Leavitt stated during the meeting.
Brito talked with Linge after the meeting. He questioned
what the “big deal” was about Santos talking to Gonzalez if he
had nothing to hide. Linge replied that the employees should
know better than to talk because “it was illegal to do [drywall
work] if it was under the prevailing wage.”
C. Analysis of January 25 Events
The Government alleges that the Respondent violated the
Act when Leavitt interrogated Santos and threatened him be-
fore the employee meeting. It is also alleged that the Respon-
dent committed further violations during the meeting.
1. Conversation with Santos
When an employer interrogates an employee about his pro-
tected activity the interrogation may violate the Act if done in a
coercive atmosphere. Greenfield Die & Mfg. Corp., 327 NLRB
237 (1998); Delta Gas, Inc., 282 NLRB 1315 (1987).
When Santos talked with Gonzalez about his wages he was
engaged in concerted activity protected by the Act. Leavitt,
Respondent’s highest ranking official, admitted that he had
questioned Santos individually about talking to Gonzalez. The
credited testimony shows that Leavitt exhibited anger towards
Santos for having disclosed he was being paid by piecework
and Leavitt threatened him with discharge. The interrogation
and threatening of Santos occurred in the context of the other
events, described below, that violate the Act, namely other
coercive activity on the part of the Respondent, including the
unlawful discharges of Santos and Brito. In sum, I find that the
interrogation and threat to Santos were coercive and violations
of Section 8(a)(1) of the Act.
2. Employee meeting
The Government asserts that the Respondent violated the Act
during the employee meeting because Leavitt implied that the
employees were disloyal when they engaged in the protected
activity of speaking to Gonzalez. Leavitt told the assembled
employees that Santos had screwed up in speaking to Gonzalez
and telling him the truth about his piecework pay. He also
implied by his question to Santos about what he would tell
Gonzalez the next time that they talked that he wanted Santos
to lie about his pay. I find that Leavitt’s statements are suffi-
cient to support the allegation of implying that the employees
were being disloyal to the Respondent by engaging in the pro-
tected concerted activity of discussing their pay with Gonzalez.
I find that the Respondent violated Section 8(a)(1) of the Act by
Leavitt’s statements.
I also find that Leavitt’s statement to Santos that if he found
out he was lying about knowing who Gonzalez was he would
be looking for a new job is coercive and was motivated by San-
tos engaging in protected concerted activity. I conclude that
Leavitt’s threat to discharge Santos is an additional violation of
Section 8(a)(1) of the Act.
Finally, I find that Leavitt’s questioning of the employees in
the meeting as to what they said to Gonzalez was another in-
stance of unlawful interrogation. This second interrogation was
part of the coercive conduct of the Respondent set forth in this
decision. I find that Leavitt’s interrogation of the employees is
a violation of Section 8(a)(1) of the Act.
D. February 20
Gonzalez returned to the Senior Center construction site on
February 20. He spoke to Hoopes and gave him a business
TRADE WEST CONSTRUCTION, INC. 15
card. Gonzalez then spoke to Brito about prevailing wages, and
gave him a business card. Gonzalez next approached Linge and
asked him if Leavitt was around because Gonzalez wanted to
ask permission to speak to the employees again. Linge said
that Leavitt was not on the site. Gonzalez then left. Linge went
to Brito and said that Leavitt wanted to be notified immediately
if Gonzalez returned. Linge asked Brito what he should do.
Brito told Linge that if Leavitt had ordered him to report Gon-
zalez’ presence on the job he should do so.
The Government alleges that Linge’s statement to Brito
about reporting Gonzalez’ activity created the impression of
surveillance of employees’ concerted activities. Creating the
impression of surveillance is a violation of Section 8(a)(1) of
the Act. El-Tech Research Corp., 300 NLRB 522, 529 (1990).
I find that by telling an employee that the Respondent would be
checking on Gonzalez, and implicitly his contact with its em-
ployees, the Respondent did unlawfully create the impression
that it was surveilling the employees concerted protected activi-
ties. I find Respondent thereby violated Section 8(a)(1) of the
Act.
E. February 24
On Saturday, February 24, Gonzalez and his partner Michael
Martinez met with Santos and Brito at a park in Bunkerville,
Nevada. Also present was Respondent’s employee Jose Anto-
nio Arce. Miguel and Jesus Diaz who were employed by
Respondent’s subcontractor, Kevin Leashman, were also
present at this meeting. Shane Hoopes, another of
Respondent’s employees, did not attend but did drive by
towards the conclusion of the meeting.
Subsequent to the meeting Supervisor Linge engaged Brito
in conversation about the Diaz brothers. The Diaz brothers
were working on the Senior Center jobsite at the time for the
Respondent’s subcontractor Kevin Leashman. Linge told Brito
that Leavitt did not want the Diaz brothers on the job because
they had met with Gonzalez. Linge said that Leavitt told sub-
contractor Kevin Leashman to get them off the jobsite.
The Government alleges that Linge’s statement to Brito
about the Diaz brothers was an implied threat to discharge its
employees for engaging in protected concerted activity. I agree
and find that Linge’s statement was coercive and did violate
Section 8(a)(1) of the Act. Cannon Industries, 291 NLRB 632,
637 (1988) (violation where supervisor told employee that
other employee had been fired for protected activity).
F. Final Work of Santos and Brito
Brito worked 1 day at the Senior Center the following week.
Santos and Brito also did some work for the Respondent on a
private home (the Slate Fought house) in Bunkerville, Nevada.
On Wednesday, February 28, Santos, Brito, Linge, Lee, and
Burnette attended a scheduled concrete convention in Las Ve-
gas at the Respondent’s expense. Brito testified that Leavitt
had previously said that it was in the Company’s interest for its
employees to learn new concrete techniques. On Thursday,
March 1, Santos again worked on the Bunkerville house.
Supervisor Janneck testified that on approximately February
28 he had a telephone conversation with Shane Hoopes. Jan-
neck recalled that Hoopes told him the names of the employees
who had attended the Quad C meeting of February 24 at the
Bunkerville Park. Janneck testified that he specifically learned
that Santos and Brito were in attendance. Janneck passed this
information on to Leavitt. Janneck conceded that it was possi-
ble that Leavitt may have been “slightly upset” upon receiving
the news.
G. March 2
Brito testified that on Friday, March 2, he received a tele-
phone call from Foreman Linge. Brito recalled that Linge told
him in an agitated voice that Leavitt had fired the whole crew
because he found out “about the big meeting with Juan Gon-
zalez.” Linge lamented that he also was included in the firing
of the crew. Brito expressed surprise that Linge had been fired
because he was not at the meeting. Linge replied that Leavitt
thought he was there. Brito became upset and hung up. He
then telephoned both Santos and Hoopes and reported what
Linge had told him.
Linge testified that he never spoke to Brito and told him he
was fired. Linge likewise denied ever telling Brito that he
(Linge) had been terminated. I have carefully considered the
testimony of Brito and Linge as to this disputed conversation. I
found Brito to be a forthright witness who impressed me with
his demeanor and the detail of his testimony. In contrast, I
found Linge to be a reluctant witness who was not forthcoming
with his responses and was not persuasive in giving his testi-
mony. I credit Brito that the conversation did occur and his
testimony as to what was said. I find that Linge did tell Brito
that he and the crew had been fired because Leavitt learned of
the Bunkerville Park meeting between Gonzalez and the em-
ployees.
After Linge’s telephone call Brito and Santos did not work
for Respondent again until Santos was recalled for 1 day of
work shortly before the hearing in this matter. The other crew-
members did work regularly thereafter. The Respondent’s
employment records show that the hours worked by its employ-
ees diminished beginning in March until they began to increase
again in June.
Santos called Linge about getting further work. Linge told
him to contact Janneck. Santos did talk to Janneck but was not
assigned any work. Janneck told Santos that work was slow
and he should look for another job.
Linge telephoned Brito on April 11 and asked him to help
out for 1 day on a concrete pour. Brito said he would accept
the day’s work but did not show up as promised. Linge did not
call Brito to work after that. Santos was recalled to work a few
days before the hearing in this case. Santos accepted the offer
and was given 1 days work. Linge testified that he thought
Santos worked for someone else and “didn’t think to bother
him” about working for the Respondent. Linge testified that
both Santos and Brito were eligible to be recalled for work.
Linge testified that the Respondent would occasionally use
subcontractor Leashman’s crew when they needed temporary
help. The record shows that Leavitt owned an Ace Hardware
store and employees were assigned to work there when other
jobs were slow. Linge testified that Leavitt gave him a “per-
sonal” roofing job to do when work slowed down in late Febru-
ary or March. Linge recruited crewmembers Rulan (Sam) Lee

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
and Claude “Eugene” Burnette, plus a personal friend, to do the
work. The job lasted 5 or 6 days. The Respondent paid Linge
for doing the work.
IV. ANALYSIS
The Government alleges that the Respondent’s refusal to as-
sign work to Brito and Santos after March 3 amounted to their
being discharged and that this was motivated by their concerted
protected activities. It is a violation of Section 8(a)(1) of the
Act to discharge an employee because he engaged in protected
concerted activity. Alldata Corp., 327 NLRB 127, 127 fn. 2
(1998). The General Counsel has the initial burden of estab-
lishing that protected activity was a motivating factor in Re-
spondent’s action alleged to constitute discrimination in viola-
tion of Section 8(a)(1). Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). The elements commonly required to support such a
showing of discriminatory motivation are employer knowledge,
timing, and employer animus. Once such unlawful motivation
is shown, the burden of persuasion shifts to the Respondent to
prove its affirmative defense that the alleged discriminatory
conduct would have taken place even in the absence of the
protected activity.
The Respondent had knowledge that Brito and Santos were
engaged in concerted protected activity. Leavitt observed San-
tos talking to Gonzalez and then interrogated and threatened
Santos with discharge for having so acted. During the em-
ployee meeting Brito expressed his support for Santos by say-
ing that he should tell the truth the next time he spoke to Gon-
zalez. The Respondent had knowledge of the continuing con-
certed activities by Santos and Brito because Hoopes told Jan-
neck that they had attended the Quad C meeting at Bunkerville
Park. Janneck in turn relayed this information to Leavitt,
whom he noted, may have been “upset” with the knowledge.
There is no doubt that Leavitt was greatly concerned about
the employees’ concerted activity. He thought he was doing
something unlawful in paying them piece rates and he was
upset at the employees for disclosing this fact to Gonzalez.
Leavitt threatened Santos with discharge for such activity.
Supervisor Linge emphasized Leavitt’s displeasure with the
employees’ concerted activities by reporting to Brito that the
Diaz brothers were removed from the job at Leavitt’s behest
because they also had met with Gonzalez. Linge also told Brito
the crew was discharged for attending the meeting with Gon-
zalez. The record amply demonstrates the Respondent’s ani-
mus concerning the employees’ concerted activities of talking
with Quad C about the company’s failure to pay its employees
prevailing wage rates.
The timing of the Respondent’s refusal to assign work to
Brito and Santos came shortly after they commenced their con-
certed activity and less than 1 week after the February 24
Bunkerville Park meeting. The record supports the conclusion
that Respondent’s work may have diminished at about the same
time. The record also shows that the Respondent used subcon-
tractors to perform some work, that Linge was given a “private”
roofing job in the same time period, and that the rest of the
crew continued to work.
The Respondent presents several defenses as to why Santos
and Brito ceased working for the Company. It is argued that
Brito was offered work in April but did not show up. The re-
cord shows the offer was for 1 day’s work. Likewise Santos
was offered 1 day of work a few days before the October 4 start
of the hearing in this case. He worked the 1 day and was never
contacted again by the Respondent. These token offers of em-
ployment do not overcome the fact that Brito was told the crew
was fired for their protected concerted activities. The 1-day
offers of employment to Santos and Brito are scant evidence of
legitimate offers of work. Likewise the Respondent’s knowl-
edge that Santos may have ultimately found other work does
not support a defense that it did not have to offer him work in
light of the unlawful discrimination directed against him.
I find that the Government has made a sufficient showing of
the elements that demonstrate the Respondent did discriminato-
rily cease employing Brito and Santos because of their pro-
tected concerted activities. I further find that the Respondent
has failed to establish that its actions were not unlawful or that
it would have ceased to employ these men regardless of their
protected activity. I conclude that the Respondent unlawfully
ceased employing Louis Brito and Daniel Santos on March 3,
2001, and it thereby violated Section 8(a)(1) of the Act. Aztec
Concrete, 277 NLRB 1244, 1251 (1985); Wright Line, supra.
CONCLUSIONS OF LAW
1. Trade West Construction, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent violated Section 8(a)(1) of the Act.
3. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Trade West Construction, Inc., Mesquite,
Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against Daniel
Santos, Louis Brito, or any other employee, because they en-
gage in concerted activity protected under the Act.
(b) Interrogating employees about their protected concerted
activities.
(c) Threatening employees with the loss of their jobs or oth-
erwise threatening, restraining, or coercing them because they
engage in protected concerted activity.
(d) Creating the impression that employees’ protected con-
certed activities are under surveillance by the employer.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mend Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
TRADE WEST CONSTRUCTION, INC. 17
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Daniel
Santos and Louis Brito full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Daniel Santos and Louis Brito whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, computed on a quarterly basis, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Daniel San-
tos and Louis Brito, and within 3 days thereafter notify these
employees in writing that this has been done and that their dis-
charges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Mesquite, Nevada, copies of the attached notice
marked “Appendix.”4 Copies of the notice written in both Eng-
lish and Spanish, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 ceased working, the Respondent
shall duplicate and mail, at its own expense, a copy of the no-
tice in both English and Spanish to all current employees and
former employees employed by the Respondent at any time
since January 25, 2001. Excel Container, Inc., 325 NLRB 17
(1997).
(f) 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.

4 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.”