United Site Services of California, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 17, 2016

20-CA-139280 (N.L.R.B. Mar. 17, 2016)

JD(SF)-14-16
Benicia, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
UNITED SITE SERVICES OF
CALIFORNIA, INC.
and Cases: 20-CA-139280
20-CA-149509
TEAMSTERS LOCAL 315, IBT
Richard J. McPalmer Esq., and Elvira Pereda, Esq., for the General Counsel.
David S. Durham, Esq., and Christopher M. Foster Esq. (DLA Piper LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. This case was tried before me on
August 24–27, 2015, in San Francisco, California. Charging Party (Union) filed charges on
October 20, 2014, and April 3, 2015, and an amended charge dated May 5, 2015, alleging
violations by United Site Services of California Inc. (Respondent) of Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended (the Act). An amended consolidated complaint
was filed on July 21, 2015. Respondent filed an answer to the amended consolidated complaint
denying that it violated the Act. The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross examine witnesses, and to file briefs. I
carefully observed the demeanor of witnesses as they testified and I rely on those observations
here. I have studied the whole record, and based upon the detailed findings and analysis below, I
conclude that the Respondent violated the Act as alleged.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that
1. (a) At all material times, Respondent has been a corporation with a place of business
at 1 Oak Road, Benicia, California (Respondent’s facility), and has been engaged in
the business of providing rental portable restrooms, temporary fencing, and sanitation
facilities.
JD(SF)-14-16
2
(b) In conducting its operations during the 12-month period preceding July 21, 2015,
Respondent purchased and received at Respondent’s facility goods valued in excess
of $50,000 directly from points outside the State of California.
5
(c) In conducting its operations during the 12-month period ending December 31,
2013, Respondent derived gross revenues in excess of $250,000.
(d) At all material times, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.10
2. At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
3. At all material times the following individuals held the positions set forth opposite 15
their respective names and have been supervisors of Respondent within the meaning
of Section 2(11) of the Act and agents of Respondent within the meaning of
Section 2(13) of the Act:
(a) Steve Gutierrez- Area Manager20
(b) Aggie T. Haley- Human Resources Manager
(c) Mark Bartholomew- Senior Vice President of Operations
(d) Mike Kivett- Reno Area Manager
(e) David Sattler- Supervisor/Lead Driver
25
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
30
United Site Services, Inc. is a company that provides portable toilet and temporary
fencing rentals. The company has multiple facilities but this case relates to the facility in Benicia
California. The company relies upon employees with varying job titles to perform the work.
The company employs the following types of employees:
35
1) Yard associates- whose work at the employer’s facility to wash, inspect, prepare, and
repair equipment;
2) Pick Up an Delivery (P&D) driver’s-whose duties include picking up and delivering
portable toilets, installing holding tanks, and completing any necessary repairs to
equipment in the field. P&D drivers must hold a Class C drivers license.40
3) Fence drivers- whose duties include the delivery and installation of fence. Fence
drivers must hold a Class C driver’s license.
4) Fence helper-whose duties are to assist the fence driver’s with installation and
delivery of fencing materials.
5) Service technicians- whose duties are to drive from site to site pumping out toilets or 45
holding tanks and to clean and restock the portable toilets. Periodically, after the
JD(SF)-14-16
3
trucks are filled they must return to the facilities to empty their tanks. They must also
hold a Class C driver’s license.

Although each employee has a regularly assigned position many are cross trained and
oftentimes cover other positions as business needs dictate. Thus the employees perform duties of 5
the other positions. For example, it is not uncommon for P&D driver’s or Fence driver’s to
perform the work of Service Technicians and visa versa.
On September 23, 2013, the Union filed a petition to represent a bargaining unit of the
employer’s workers. (GC Exh. 2.) On November 21, 2015, the Union won the election. (Jt. 10
Exh. 1.) On January 7, 2014, the Board certified the Union as representative of the following
Unit:
All full time and regular part-time Service Technicians, Lead Service
Technicians, Pick Up and Delivery Drivers, Mechanics, Laborers, and Fence
Installers employed by the Employer at its 1 Oak Road, Benecia California 15
facility, but excluding Dispatchers, supervisors and guards as defined by the Act.
(GC Exh. 3.)
From February to July 2014, the parties engaged in negotiations for an initial contract.
The parties held multiple bargaining sessions. In the course of this bargaining, unit employees 20
twice voted on contract proposals. On July 16, 2014, the employer provided its Last Best Final
Offer (LBFO). (R. Exh. 2.) On July 23, 2014, the employees unanimously rejected the proposal.
(R. Exh. 11–17.) At this same meeting the employees voted to authorize a strike. Despite the
authorization to strike the strike did not begin immediately. The employees directed the Union
to investigate other options to put pressure on the employer before going on strike. The Union 25
also needed to seek approval from the International Brotherhood of Teamsters for strike benefits.
After the efforts by the Union to put pressure on the employer did not yield results satisfactory to
the employees, they decided to go on strike. On October 5, 2014, the Union notified the
employer that it would strike the next day. (GC Exh. 5.)
30
The strike at the Benicia facility began on October 6, 2014. It is undisputed that the
strike was an economic strike. (Tr. 35:12–13.) At the time of the strike, the unit consisted of 25
active employees and a vacant P&D Driver position. Of the 25 employees 21 of them went out
on strike with the majority picketing the entrance to the employer’s facility every day of the
strike.1 The employer had in place a contingency plan for the strike which relied upon 35
employees from other facilities to assist and cover the striker’s positions. (Jt. Exh.1, GC Exh.
10.) The employer also used temporary employees to cover its Bencia operations who were
hired through “Labor Finder’s” a temporary employment agency. Also on the first day of the
strike, the employer through its human resources manager, Augeda Halley, area manager, Steve
Gutierrez, and vice president, Steve Wit began hiring permanent replacements. (Jt. Exh. 1 Stip. 40
21.) The offers were made for “permanent full time position[s], and to work indefinitely even
after the strike ended.” (R. Exh. 12–through 12–71). The written offers included the following
language

1 Michael Knutsen, Javier Santiago, Oscar Reyes Perusquia, and Richard Rotti did not join the strike.
(Jt. Exh. 1.)
JD(SF)-14-16
4
You understand and agree that you have been advised that a strike or other active
labor dispute exists between USS and Teamsters Local 315 at the Benecia
location and that the position offered is as a permanent replacement for a striker
who is presently on strike against USS at the Benecia location. You further
understand that, as a permanent replacement, if the strike ends, you will not be 5
displaced to make room for the returning strikers. . . . (emphasis in original). (R.
Exh. 12–1 through 12–74.)
Included among the written offer was a written offer of acceptance. The document was
titled, “Acceptance of Offer of Employment as Permanent Replacement” and contained language 10
similarly to the offer indicating that the employee would “immediately’ accept employment as a
“permanent replacement” and that the person would not be displaced once the strike ended.
(Exh. 12–1 through 12–74.)
The Human Resources Manager Halley began to make offers and kept a log of the dates 15
and times of offers and receipt of written acceptance. The log contained the following
information:
JD(SF)-14-16
5
Permanent
Position
Name
Offer and Acceptances
Verbal Acceptance
Date and Time
(See Resp. Exh. 14)
Written Acceptance Date
and Time
(See Resp. Exh. 12-1
through 12-74) Mechanic Michael Knutsen 10/14, 5:29 PM 10/14, 5:29 PM
Fence Driver James Matthews 10/6, 4:15 PM 10/6, 4:50 PM
Service Technician Christopher Orr 10/6, 9:30 AM 10/6, 9:30 AM
Service Technician Martin Escobar Segura 10/7, 7:15 AM 10/6, 4:15 PM
Service Technician Francisco Hernandez Rocha 10/7, 7:10 AM 10/6, 4:13 PM
Service Technician Armando Martinez Saucedo 10/7, 8:40 AM 10/13, 6:00 PM
Service Technician Alfonzo Meza 10/7, 7:55 AM 10/8, 11:19 AM
Service Technician Jorge Recinos (or Racinos) 10/7, 9:30 AM 10/8, 9:30 AM
Service Technician Desiree Martinez 10/10, 5:30 AM N/A
Service Technician Paul Barron 10/10, 5:00 AM 10/10, 5:00 AM
Service Technician Greg Beddoes 10/10, 5:30 AM N/A
Service Technician Javier Santiago 10/14, 7:20 PM 10/10, 7:30 PM
Service Technician Darryl Gaines 10/14, 6:43 PM 10/14, 6:43 PM
Service Technician Brian Flores 10/16, 1:00 PM 10/16, 1:00 PM
Service Technician Nicholas
Cermeno- Hernandez
10/16, 5:00 AM 10/16, 8:15 AM
Service Technician Alvin Williams 10/16, 1:29 PM 10/16, 12:29 PM
Service Technician Kevin Murphy 10/16, 2:50 PM 10/16, 7:00 PM
Yard Associate Joshua Johnson 10/6, 4:15 PM 10/6, 4:50 PM
Yard Associate Jesse Hernandez 10/13, 2:15 PM 10/14, 2:41 PM
Yard Associate Maurice Espinoza 10/16, 7:38 AM 10/6, 9:16 AM
Yard Associate Julio Campos 10/16, 12:39 PM 10/16, 12:59 PM
Yard Associate Lester Moreno
25
10/16, 2:15 PM 10/18, 2:20 PM
Yard Associate Antoine Frazer 10/16, 2:47 PM 10/17, 7:20 AM
Pick Up & Delivery
Driver
Richard Wilkerson 10/8, 3:30 PM 10/14, 7:36 PM
Pick Up & Delivery
Driver
Antony Boatmun 10/10, 3:45 PM 10/13, 8:10 AM
Pick Up &
Delivery Driver
Michael Neitz 10/14, 1:22 PM 10/14, 1:22 PM
Pick Up &
Delivery Driver
James Brown 10/15, 3:20 PM 10/15, 3:57 AM
JD(SF)-14-16
6
Despite the employer’s ongoing efforts to hire permanent replacements beginning on the
first day of the strike, Respondent did not inform the Union of its hiring efforts until 3:40 p.m. on
October 16, 2014. (GC Exh. 6.) The notification which arrived via email advised that the
employer had, “hired permanent replacements to fill all of the positions vacated by the striking
employees.” (GC Exh. 6.)5
The next evening on October 17, 2014, the Union held a meeting and discussed the
employer’s email of October 16, 2014, with the strikers. Upon learning of the employers efforts
to hire permanent replacements the strikers chose to return to work. (Tr. 141.) At 6:05 p.m. of
that same evening, the Union emailed to Respondent a letter terminating the strike and making 10
an unconditional offer of its employees to return to work. (GC Exh. 7.) On October 18, 2014,
Respondent confirmed that there were no unit positions available and advised that the striking
employees had been placed on a preferential recall list. The correspondence also requested up to
date contact information for all of the strikers. (GC Exh. 8.) On October 22, 2014, the employer
sent another email requesting up to date contact information for the strikers. (GC Exh. 9.) On 15
October 23, 2014, the Union replied advising that it would “confirm the correct addresses and
provide updates as necessary.” (GC Exh. 9.) On October 27, 2014, the Union provided some
updated contact information. (GC Exh. 9.)
Respondent, thereafter, put in place its procedures for preferential recall. (R. Exh. 20.) 20
Under its process, the area manager, Steve Gutierrez would make a determination that a position
was vacant he would then inform the Human Resources Manager Aggie Halley who would then
refer to the preferential recall list and contact two former strikers with the highest seniority. She
would contact them by both calling their phone numbers of record and also mailing letters to
their address of record. If both employees accepted and only one position was available the 25
position would be offered to the person with the most seniority and the less senior person would
remain eligible for preferential recall. If the person did not accept the position then the employer
considered their employment relationship ended at that point in time. (Tr. 268, 270.) If Halley
found there were no former strikers who held a position to be filled, then Halley would offer it to
a former striker in another position with the understanding that they would still be eligible for 30
preferential recall to their former or substantially similar position. (Tr. 265.)
The first offer of reinstatement went out on December 8, 2015, and continued through
June 9, 2015. Sometime in mid-January (a time when only three of the former striking
employees had returned to work) a petition was circulated among the employees. The petition 35
contained the following language:
We the employees of United Site Services a 1 Oak Road, Benicia CA 94510 are
hereby giving notice to the Teamsters Local 315 that we do NOT (emphasis in
original) want any association or Representation from the Teamsters Local Union 40
315 effective immediately. (R. Exh. 9.)
The petition was signed by 24 employees and most signed with dates next to their names. Some
signed on January 5, 2015, others, January 7, 2015, and two signed on February 11, 2015. Two
employees that signed the petition did not indicate the date they signed. (R. Exh. 9.) The 45
petition was delivered by Richard Wilkerson, a permanent replacement employee to the Senior
Vice President of Operations Mark Barthholomew. Bartholomew sent the petition to the Human
JD(SF)-14-16
7
Resources Manager Halley and asked her to verify that the signatures on the petitions matched
signatures in the employees’ records. (Tr. 433.) Halley conducted the verification process and
reported back that in fact the signatures matched. (Tr. 433.) By email dated March 27, 2015,
Bartholomew sent a letter to the Union which set forth the following:
5
We are in possession of objective evidence that your union no longer represents a
majority of the employees at United Site Services a majority of the employees at the
United Site Services bargaining unit. Accordingly United Site Services hereby
withdraws recognition from your union in this unit effectively immediately.
(GC Exh. 12.) 10
Despite the withdrawal of recognition, Respondent continued to offer reinstatement to former
striker’s with the last offer being a Service Technician offer made to David Reeves who declined
and chose to remain as a P&D driver on June 9, 2015. (GC Exh. 48.)
15
B. Analysis
i) Respondent’s Violation of the Act 20
a) The Failure to Recall Striking Workers
The court in New England Health Care Employees Union v. NLRB, 448 F.3d 189, 191–
92 (2d Cir. 2006), succinctly set forth the applicable legal standards as follows: 25
Section 7 of the Act, 29 U.S.C. § 157, grants employees the “right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” See also 29 U.S.C. § 163 (“Nothing in this Act ... 30
shall be construed so as either to interfere with or impede or diminish in any way the right to
strike . . . .”). To implement this right, § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it an
unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the
exercise” of their § 7 rights. And § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), makes it an unfair
labor practice for an employer to “discourage membership in any labor organization.” Under 35
Supreme Court precedent, an employer that refuses to reinstate economic strikers violates §
8(a)(3) unless it can demonstrate that it acted to advance a “‘legitimate and substantial business
justification[ *192 ].’” See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19
L.Ed.2d 614 (1967) (quoting NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 18
L.Ed.2d 1027 (1967)). The hiring of permanent replacement workers amounts to one such 40
legitimate and substantial business justification. See NLRB v. Int'l Van Lines, 409 U.S. 48, 50,
93 S.Ct. 74, 34 L.Ed.2d 201 (1972) (“[A]n employer may refuse to reinstate economic strikers if
in the interim he has taken on permanent replacements.”); Belknap, Inc. v. Hale, 463 U.S. 491,
504 n. 8, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983) (“The refusal to fire permanent replacements
because of commitments made to them in the course of an economic strike satisfies the 45
requirement of [Fleetwood Trailer ] that the employer have a legitimate and substantial
justification for its refusal to reinstate strikers.”) (internal quotation marks omitted).
JD(SF)-14-16
8
Consequently, “[w]here employees have engaged in an economic strike, the employer may hire
permanent replacements whom it need not discharge even if the strikers offer to return to work
unconditionally.” Belknap, 463 U.S. at 493, 103 S.Ct. 3172. At the same time (as the Board
recognized), the Act is violated if “an independent unlawful purpose” motivated the hiring of
permanent replacements. 1 Bd. Decision at 5; see also Hot Shoppes Inc., 146 NLRB 802, 805 5
(1964). As with other elements of an unfair labor practice, the General Counsel cannot prevail
without a finding that the employer had an independent unlawful purpose. See NLRB v.
Transportation Mgmt. Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).
The court in New England Health Care Employees Union addressed a question regarding 10
whether the Board properly found that an employer’s decision to keep the hiring of permanent
replacements secret until the employer could “get as many bodies hired before the union found
out” could support the finding of an “independent unlawful purpose.” The court noted:
Absent such countervailing considerations, and even if one adopts the Board's 15
own analytic framework, logic suggests that an employer seeking to enhance its
bargaining leverage by hiring permanent replacements would have every
incentive to publicize the effort, and that an employer seeking only to prolong its
ability to withstand the strike would be indifferent to whether the strikers and the
union knew what it was doing. Conversely, it would appear that employers with 20
an illicit motive to break a union have a strong incentive to keep the ongoing
hiring of permanent replacements secret. The replacement of over half of a
unionized workforce with nonunion workers would devastate the union's power
and credibility. An employer seeking to land such a blow cannot simply announce
the hiring of large numbers of replacements, because in order to justify a refusal 25
to allow striking workers to return to work under the “permanent replacement”
safe harbor, the employer must have achieved an employment relationship with
the permanent replacements somewhere between “a mere offer, unaccepted when
the striker seeks reinstatement” and “actual arrival on the job.” See H & F Binch
Co. v. NLRB, 456 F.2d 357, 362 (2d Cir.1972). So an employer seeking to punish 30
strikers and break a union therefore needs enough time to establish an
employment relationship with a large number of permanent replacements before
the union can react by offering to return to work, and will therefore have a strong
incentive to keep the replacement program secret for as long as possible.
35
Id. at 195–196. The court remanded the case back to the board which is referenced as Avery II,
350 NLRB 214 (20017). In Avery II, the Board accepted the second circuit’s finding that the
“logical implication of Respondent’s secrecy was an illicit motive.” The Board thereafter found
the record insufficient to refute the inferred unlawful motive.
40
I find the reasoning of the Board and the court in New England Health Care Employees
instructive in addressing the issues presented in this case as in reality there are logical similarities
between the facts presented in this case and Avery II. 2 It is undisputed in this record that

2 Respondent argues that Avery II is of no precedential value and should not be recognized as
controlling authority citing administrative law judge decisions that disagree with Avery II. It is within the
JD(SF)-14-16
9
although Respondent determined in August that it would permanently replace employees and
although the hiring of replacements began upon the strike’s initiation on October 6, 2014,
Respondent did not inform the Union of its hiring efforts until it had filled all of the positions.
(Tr. 413, 417, 451, GC Exh. 6). I find applying similar reasoning as did the court in New
England Health Care Employees, that when an employer waits until all of the positions are filled 5
to notify the Union of its decision to replace employees this in itself creates a “logical
implication” that Respondent’s decision was the product of an “illicit motive.” An employer
with an illicit motive of breaking a union has a strong incentive to wait until after it has hired all
of its permanent replacements to notify strikers because once the strikers find out about the
decision to permanently replace them they could immediately unconditionally offer to return to 10
work. In this case, the employer began its permanent replacement efforts on the first day. Had
the strikers been informed on the first day they might have voted to unconditionally return that
very same day, possibly even within hours. Waiting until all strikers positions are permanently
filled before notifying of the decision to permanently replace them is calculated to deny strikers
the opportunity of returning to work.315
General Counsel points to other evidence which supports the notion that the employer
was motivated by an independent unlawful purpose. General Counsel points to Respondent’s
“Non-Union Philosophy which appears in its handbook. Respondent maintains an Associate
Handbook that contains the following passage:20
Non-Union Philosophy: United Site Services will do everything in its legal power
to prevent any outside, third party, who is potentially adversarial, such as a union
from intervening or interrupting the one-on-one communications or operational
freedoms that we currently enjoy with our associates. (GC Exh. 29 p. 7.) 25
General Counsel also points to following indirect evidence to support its contention that
the employer was motivated by an independent unlawful purpose;(1) the ready availability of
temporary workers, noting that the work is not skilled in nature, (2) Respondent had a ready
supply of temporary labor, (3) Respondent had no contractual obligations with Labor Finders to 30
hire their employees permanently, (4) the conversion of temporary employees to permanent
employees resulted in the incursion of fees amounting to approximately $15,000 dollars, (5)

province of the Board to resolve any ambiguities that exist regarding whether its decision in Avery II
should be followed and if so what the applicable legal standards to be followed are. I decline to encroach
upon resolving matters that are more properly reserved for the Board.
3 Respondent asserts that the Board “firmly holds” that the employer has no obligation to notify
strikers before hiring replacements citing Armored Transfer Service, 287 NLRB 1244 (1988). A careful
reading of Armored Transfer reveals that the notion that the employer has no obligation to notify strikers
is derived from a single sentence without any citation of legal authority in footnote 21 of the
administrative law judge’s decision. I question whether the single sentence of footnote 21 (although it
might have been often repeated) was in fact subjected to the scrutiny of “reasoned decision making”
required. See Local Joint Executive Board of Las Vegas, 309 F. 3d 578 (9th Cir. 2002). Regardless,
accepting the premise that the employer had no obligation to notify strikers did nothing to insulate the
Respondent in Avery II from liability.
JD(SF)-14-16
10
Respondent sought to convert the temporary employees immediately upon the start of the strike,
(6) Respondent held open positions for various hires.4 (GC Br. at 62–67).
In sum, I find examining the totality of the evidence including the evidence specifically
referenced in the above paragraphs that General Counsel has sustained its initial burden of 5
showing that an independent unlawful purpose was a motivating factor in the employer’s
decision to permanently replace economic strikers. Thus, the burden shifts to show that it would
have taken the same action even in the absence of unlawful purpose. I find that Respondent has
failed in this regard. Moreover, I find its asserted reasons “to minimize training costs, reduce
turnover, and maintain customer service levels” are mere pretexts. The reasons set forth by 10
Respondent are simply logically inconsistent with the hiring of replacements. In the first
instance, new employees would no doubt incur more training costs as well as the undisputed
demonstrated additional costs to convert temporary Labor Finder’s employees to permanent
status. Secondly, the strikers knew the work, knew the routes and had been performing the work
in a satisfactory fashion. Had Respondent been concerned about customer service levels and 15
“turnover” it could have on the first day of the strike disclosed to the strikers its plan to replace
them to induce them to abandon the strike and return to work. The reasons advanced by
Respondent are simply not credible and don’t even address the critical issue of why it waited
until it filled the positions to disclose the hiring of permanent replacements. Thus, I find, as did
the Board in Avery II, that the record is insufficient to refute the inferred unlawful motive and 20
find that Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate
permanently replaced economic strikers upon their unconditional offer to return to work. 5
b) The Withdrawal of Recognition.
25
It is established law that “an employer may not withdraw recognition from a union while
there are unremedied unfair labor practices tending to cause employees to become disaffected
from the union.” Broadway Volkswagen, 342 NLRB 1244, 1247 (2004) (citations omitted). In
determining whether a causal relationship exists between the unremedied unfair labor practices
and the loss of union support, the Board considers the following factors: (1) the length of time 30
between the unfair labor practices and the withdrawal of recognition; (2) the nature of the
violations, including the possibility of a detrimental or lasting effect on employees; (3) the
tendency of the violation to cause employees disaffection; and (4) the effect of the unlawful
conduct on employees' morale, organizational activities, and membership in the union. Master
Slack Corp., 271 NLRB 78, 84 (1984). See also, Beverly Health & Rehab Services, 346 NLRB 35
1319 (2006).
Applying these factors here, I conclude that the Respondent's violation of the Act by
refusing to recall striking employees would likely cause the Union to lose support among
employees. I find that the unfair labor practice, discussed above, would, when viewed 40
objectively, tend cause employee disaffection given that the withdrawal of recognition occurred

4 It is important to note that this list is not an exhaustive list of all of General Counsel’s contentions
in this regard.
5 Alternatively, I would find that waiting until after all positions are filled to notify the Union of the
permanent replacement of strikers is “inherently destructive” of employees’ right to strike. See Great
Dane, 388 U.S. 26 (1967). The right to strike also includes enmeshed within it not only the right to strike
but also the right to end the strike and return to work.
JD(SF)-14-16
11
a mere 10 weeks after the unfair labor practices were committed. I also find that the unlawful
refusal to reinstate union strikers and instead employing others not sympathetic to the strike
would, when viewed objectively, have the tendency to cause disaffection. Also, the effects of
the unfair labor practices were both detrimental and lasted through the time the withdrawal
petition was circulated. See D&D Enterprises, 336 NLRB 850, 859 (2001). I find strong and 5
compelling objective evidence in the record to show that a mere 10 weeks prior to the unfair
labor practices there was a lack of disaffection. The Union won a Board certified election, the
union members were actively participating in union affairs and the majority chose to strike with
only 4 choosing to cross the picket line. This lack of prior disaffection is strong evidence of the
causal connection to the unfair labor practices. See Bunting Bearings Corp., 349 NLRB 1070 10
(2007), holding that causal connection established in part by lack of prior evidence of
disaffection. It is apparent that any Union loss of support among employees was causally related
to the unfair labor practices discussed above.
In the alternative, I agree with General Counsel’s assertion that in view of the fact that all 15
of the replacements are regarded as illegitimate, Respondent cannot demonstrate an actual loss of
majority. Discounting the illegitimate replacements, the Unit consisted of 25 employees only 7
of which constitute valid signatures. (GC Br. at 92-93, Jt. Ex 1, ¶¶27,33). I therefore find that
the Respondent's withdrawal of recognition of the Union violated the Act.
20
CONCLUSIONS OF LAW
The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.25
1. The Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate
the economic strikers upon their unconditional offer to return to work.6
2. The Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing 30
recognition of Local 315 as the bargaining representative of the employees at
Respondent’s Benicia facility.
Remedy35
Having found Respondent has engaged in certain unfair labor practices, I find
Respondent must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
40

6 It should be noted that General Counsel in its complaint alleged in the alternative that violations of
the Act occurred involving the placement of employees on the permanent recall list and a transferee’s
placement into a permanent position. (GC Exh. 1(j).) These allegations were also the subject of a post
hearing motion to strike portions of GC’s brief filed by Respondent. In as much as these issues are
subsumed within my finding that the entire failure to reinstate was unlawful, I need not reach these issues.
The Respondent’s motion to strike is accordingly denied.
JD(SF)-14-16
12
a) Respondent shall be required to reinstate all Unit employees who engaged in the
strike and make whole in all respects for all losses whatsoever resulting from
Respondent’s unlawful actions and its failure to reinstate the strikers beginning
October 17, 2014. Back pay shall be computed from on a quarterly basis from the
date of the failure to reinstate October 17, 2017, to the date of proper offer of 5
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed 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 Regional Director for Region
20, within 21 days of the date the amount of back pay is fixed, either by agreement or 10
Board order, a report allocating the backpay award to the appropriate calendar
year(s). AdvoServ of New Jersey, 363 NLRB No. 143 (March 11, 2016). The
Company shall also Compensate employees for the adverse tax consequences, if any,
of receiving one or more lump-sum back pay awards covering periods longer than 1
year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).715

b) Respondent will also be ordered to recognize and bargain in good faith with the
Union as the exclusive bargaining representative of the Unit. Further, in the event
that Respondent changed the units terms and conditions of employment following its
withdrawal of recognition from the Union, upon the Union’s request rescind such 20
changes and restore the status quo ante and make whole the unit employees for losses
in earnings and other benefits which they may have suffered as a result of such
changes.
c) Respondent shall upon resumption of bargaining, bargain in good faith with the 25
Union on request for the period set forth in Mar-Jac Poultry Co., 136 NLRB 785
(1962).
d) Respondent shall schedule a meeting during work hours with its employees and in the
presence of a Board Agent read the attached notice to employees in English and 30
Spanish. In the alternative, the Respondent shall arrange for a Board agent to read the
notice in English and Spanish to employees during work hours in the presence of
Respondent’s supervisors.
e) Respondent will be ordered to post an appropriate notice.35

7 General Counsel argued that “search for work” and “work related expenses” ought to be charged to
Respondent regardless of whether the discriminate received interim earnings during the period. As the
Board has yet to authorize such as part of make whole relief, I decline to award it as a remedy.
JD(SF)-14-16
13
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
Order5
The Respondent, United Site Services of California, Inc., (insert city, state), its officers,
agents, successors, and assigns, shall
1. Cease and desist from engaging in the following conduct
(a) Failing to reinstate the economic strikers upon their unconditional offer to return. 10
(b) Withdrawing recognition of Local 315 as the bargaining representative of the
employees at Respondent’s Benicia facility and thus failing to bargain with the Union.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.15
(a) All strikers shall be offered reinstatement to their former positions if reinstatement
has not already occurred and shall make the employees whole in all respects for any
loss of earnings and other benefits suffered as a result of the unlawful conduct in the
manner set forth in the remedy section of the decision. . Compensate the employees20
for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and
shall file a report with the Regional Director for Region 20, within 21 days of the date
the amount of back pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar year(s).
(b) Preserve and provide within 14 days at a reasonable place designated by the Board 25
or its agents, all payroll records, social security payment records, 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 back pay due under the
terms of this Order.
(c) Recognize and bargain in good faith with the Union as the exclusive bargaining 30
representative of the Unit. Further, in the event that Respondent changed the units
terms and conditions of employment following its withdrawal of recognition from the
Union, upon the Union’s request rescind such changes and restore the status quo ante
and make whole the unit employees for losses in earnings and other benefits which
they may have suffered as a result of such changes.35
(d) Within 14 days after service by the Region, post at its facility in Benicia County
California copies of the attached notice marked “Appendix.”9 Copies of the notice, on

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
forms provided by the Regional Director after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted.
by the Respondent to ensure that the notices are not altered, defaced, or covered by 5
any other material. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its
employees by such means.
proceedings, the Respondent has gone out of business or closed the facility involved in 10
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees employed by the
Respondent at any time since
(e) Within 21 days after service by the Region, file with the Regional Director a sworn 15
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. March 17, 2016
20

25

9 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)
14
Reasonable steps shall be taken
In the event that, during the pendency of these
October 17, 2014.
___________________
Dickie Montemayor
Administrative Law Judge

-14-16
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
The Teamsters Local 315, IBT is the employee’s representative in dealing with us
regarding wages, hours or other working conditions of employees in the following
unit:
All full time and regular part-time Service Technicians, Lead Service
Technicians, Pick Up and Delivery Drivers, Mechanics, Laborers, and Fence
Installers employed by the Employer at its 1 Oak Road, Benicia California
facility, but excluding Dispatchers, supervisors and guards as defined by the Act
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT discriminate against employees because of their participation in a lawful
strike or because of their support for Teamsters Local 315, IBT, or any other labor
organization.
WE WILL NOT fail or refuse to reinstate employees engaged in a lawful economic strike,
upon their unconditional offer to return to work, where it is shown, as in this case that we
were motivated by an independent unlawful purpose in hiring permanent replacements for
the striking employees.
WE WILL NOT fail or refuse to reinstate employees engaged in a lawful economic strike to
their former or substantially equivalent positions, following their unconditional offer to
return to work where it is shown, as in this case that we were motivated by an independent
unlawful purpose in hiring permanent replacements for the striking employees.
WE WILL NOT withdraw recognition from the Union or refuse to recognize and bargain
with the Union as your bargaining representative.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of
the Act.
WE WILL make all strikers whole for any loss of earnings and other benefits suffered as a
result of our unlawful actions.
WE WILL, within 14 days from the date of the this Order, offer our employees who went on
strike on October 6, 2014, and who have not yet been reinstated, 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, dismissing, if
necessary any permanent and nonpermanent replacements hired during the strike.
WE WILL make whole the employees who went on strike on October 6, 2014, and who
have not yet been reinstated, and the employees who may have been reinstated but whose
reinstatement was delayed because a permanent replacement supposedly occupied their
position on October 17, 2014, for any loss of earnings and other benefits suffered as a result
of the discrimination against them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the this Order, remove from our files any
reference to our unlawful termination, termination of reinstatement rights, and/or failure to
reinstate the striking employees, and we will, within 3 days thereafter, notify each of them in
writing that this has been done and that our unlawful failures will not be used against them in
any way.
WE WILL, on request, bargain with the Union as your representative, and for 12 months
thereafter as if the certification year had not expired, about your wages, hours, and other
working conditions. If an agreement is reached with the Union, we will sign a document
containing that agreement.
UNITED SITE SERVICES OF CALIFORNIA,
INC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-139280 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5183.