W.D. Manor Mechanical Contractors, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 5, 2010

28-CA-022384 (N.L.R.B. May. 5, 2010)

JD(SF)–16–10
Phoenix, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
W.D. MANOR MECHANICAL CONTRACTORS, INC.
and Case 28-CA-22384
28-CA-22394
SHEET METAL WORKERS’ INTERNATIONAL 28-CA-22487
ASSOCIATION, LOCAL NO. 359, AFL-CIO, CLC 28-RC-6650
Table of Contents
Statement of the Case........................................................................................................................1
Findings of Fact ..................................................................................................................................2
I. Jurisdiction..............................................................................................................................2
II. Labor Organization .................................................................................................................2
III. The Alleged Unfair Labor Practices.......................................................................................2
A.The Facts.........................................................................................................................2
1. Respondent’s Business ..........................................................................................2
2. The Union Organizing .............................................................................................3
3. The Events at the MIM Jobsite ...............................................................................3
4. The Events at the BIMC Jobsite .............................................................................5
5. The Events at the Shop ..........................................................................................5
a.The Supervisory Status of Sheet Metal Shop
Leadman Joshua Carrillo .................................................................................5
b. Carrillo’s Conduct ............................................................................................6
6. The Events at the Front Office ................................................................................8
a. The Applications..............................................................................................8
b. Patterson’s Duties ...........................................................................................9
7. Respondent’s Hiring Practice..................................................................................9
8. The Nathan Weimann Termination .........................................................................10
9. The Termination of Retzlaff, Brimie, Chavez, Duffy and Neilsen ...........................11
10. The Use of Temporary Labor................................................................................12
11. Outsourcing Fabrication Work ..............................................................................13
B. The Analysis ...................................................................................................................14
1. The 8(a)(1) Allegations ...........................................................................................14
a. The Law...........................................................................................................14
(1) Interrogation ...........................................................................................14
(2) Surveillance............................................................................................15
(3) Threats ...................................................................................................15
(4) Overly Broad No-Solicitation Rules .......................................................16
b. The Complaint Allegations ..............................................................................17
2. The 8(a)(3) and (4) Allegations ...............................................................................26
a. The Law..........................................................................................................26
b. The Complaint Allegations .............................................................................27
IV. Summary ...............................................................................................................................34
V. The Objections to Conduct Affecting Results of Election.......................................................34
Conclusions of Law ............................................................................................................................38
The Remedy .......................................................................................................................................40
ORDER...............................................................................................................................................40
APPENDIX..........................................................................................................................................43
JD(SF)–16–10
Phoenix, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
W.D. MANOR MECHANICAL CONTRACTORS, INC.
and Case 28-CA-22384
28-CA-22394
SHEET METAL WORKERS’ INTERNATIONAL 28-CA-22487
ASSOCIATION, LOCAL NO. 359, AFL-CIO, CLC 28-RC-6650
Sandra l. Lyons, Esq., Phoenix, Arizona,
on behalf of the General Counsel.
Pat Montroy, Esq. of Phoenix, Arizona,
on behalf of the Charging Party.
Keith F. Overholt, Esq.,
Valerie J. Walker, Esq. (Jennings, Strauss & Salmon)
of Phoenix, Arizona, on behalf of Respondent.
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge: This case was tried in Phoenix,
Arizona on October 6-9 and November 16-18, 2009, upon an order consolidating cases and
consolidated complaint (Complaint), as amended1, issued on May 29, 2009, and the order
directing hearing on objections issued on May 29, 2009 by the Regional Director for Region 28.
The Complaint alleges that W.D. Manor Mechanical Contractors, Inc. (Respondent)
violated Section 8(a)(1), (3) and (4) of the Act by engaging in multiple acts of interrogation of
employees about their Union activities, by engaging in multiple acts of surveillance of
employees’ union and concerted activities, by promulgating overly broad and discriminatory
rules, by repeatedly threatening employees with discharge and plant closure for engaging in
union activities, by telling employees it would be futile to support the Union, by isolating
employees who supported the Union, by telling employees to call 911 when job applicants who
displayed union affiliation asked for job applications, by issuing written discipline to Robert
Jones, by hiring temporary workers, by imposing more onerous working conditions, by delaying
hiring qualified applicants, by disciplining and discharging Nathaniel Weimann, Robert Jones,
Jarrod Retzlaff, Paul Brimie, Pedro Chavez, Charles Duffy and Terrance Nielson, by denying
access to its application procedure to union supporters, by failing to hire applicants who

1 At the hearing, Counsel for the General Counsel made a motion to amend the Complaint
by changing the dates in paragraphs 6(b) and (c) to January 12, 2009 and by withdrawing
paragraphs 5(a) and 6(d). There being no objection, the amendments were granted.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
2
supported the Union and by outsourcing its fabrication work. Respondent filed a timely Answer
to the Complaint stating it had committed no wrongdoing.
The Union filed a petition with the Board on March 13, 2009, in case 28-RC-6650.
Pursuant to a “Stipulated Election Agreement” on April 16, 2009, an election by secret ballot
was conducted. On April 21, 2009, the Petitioner filed 41 timely objections to the election. On
May 29, 2009, after conducting an investigation, the Regional Director for Region 28 issued his
order directing hearing on objections in case 28-RC-6650. The objections generally track the
allegations of the Complaint.
On June 1, 2009, the Regional Director for Region 28 issued an order consolidating
cases 28-RC-6650, 28-CA-22384, 28-CA-22394 and 28-CA-22487 for hearing.
Findings of Fact
Upon the entire record herein, including the briefs from the General Counsel and
Respondent, I make the following findings of fact:
I. Jurisdiction
Respondent admitted it is an Arizona corporation with an office and place of business
located in Phoenix, Arizona, where it is engaged in providing mechanical contractor production
and services specializing in plumbing, process piping, process HVAC systems, natural and
medical gas systems, sanitary, storm sewer and fire lines. Annually, Respondent in the course
of its business operations purchased and received at the Respondent’s Phoenix facility goods
valued in excess of $50,000 directly from points outside the State of Arizona.
Based upon the above, Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted and I find that the Sheetmetal Workers International Association,
Local No. 359, AFL-CIO (Union) is a labor organization within the meaning of Section 2(5) of the
Act.
III. The Alleged Unfair Labor Practices
A. The Facts
1. Respondent’s Business
Respondent has been engaged in the heating, air conditioning and plumbing business in
the Phoenix metro area since 1945. In about 1999 Respondent’s President Brian DeWitt
(DeWitt) and Executive Vice President Don Petty (Petty) bought Respondent. DeWitt operates
the plumbing side of the business and Petty the heating and air conditioning side.
Respondent’s heating and air conditioning business requires the use of fabricated sheet metal
ducts and fittings which are made at Respondent’s sheet metal shop located at its Phoenix
facility. Respondent’s hierarchy in the heating and air conditioning part of the business runs
from Petty to Sheet Metal Superintendent Shawn Bowser (Bowser). Bowser is responsible for
both the sheet metal fabrication shop (shop) and Respondent’s field operations. The shop is
operated by Sheet metal Shop Foreman Trevor Davies (Davies). Sheet Metal Shop Leadman
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
3
Joshua Carrillo (Carrillo) reports to Davies. Respondent employs sheet metal fabricating
employees in its shop who make ducts and fittings which are installed on Respondent’s jobsites
in the field by Respondent’s other sheet metal employees. In the field two job superintendants
report to Bowser. Below the job superintendants are project managers. Eight foremen report to
the project managers.
During the period November to December 2008, Respondent was working on several
jobs that involved installation of hearing and air conditioning systems. The jobs included the
Musical Instrument Museum (MIM), the Banner Ironwood Medical Center (BIMC), Mayo
Hospital, General Dynamics, and several ongoing service projects. The MIM jobsite was new
construction for a two story museum to display musical instruments. The BIMC jobsite involves
new construction of a large hospital.
2. The Union Organizing
In January 2008, the Union began a campaign to organize Respondent’s sheet metal
employees in the shop and in the field. Pat Montroy (Montroy), the Union’s Organizer, began
contacting Respondent’s sheet metal employees in January 2008 and set up a meeting for
Respondent’s sheet metal employees. Montroy contacted Wes Bowser, one of Respondent’s
foremen at its General Dynamics jobsite. In February 2008 Montroy met with Respondent’s
President Brian DeWitt at Respondent’s Phoenix facility and told DeWitt that the Union wanted
Respondent to sign a contract covering its sheet metal employees. DeWitt deferred the matter
to Executive Vice President Don Petty, who ran the heating and air conditioning part of the
business. In February Montroy called Petty several times and left a message that he wanted to
talk about a collective bargaining agreement. When Petty did not return his calls, Montroy sent
Petty a letter at the end of February 2008. At this time the Union decided to stop its organizing
efforts at Respondent. In November 2008 the Union resumed its organizing efforts when one of
Respondent’s sheet metal employees came to the Union expressing interest in the Union. In
November and December 2008 Montroy went to Respondent’s MIM, BIMC and Mayo Hospital
jobsites to speak to employees during their breaks in the jobsite parking lots. Montroy also
spoke to employees by phone and met them after work and solicited authorization cards.
Montroy called Respondent’s Sheet Metal Shop Leadman Joshua Carrillo and met him at the
Union hall on November 26, 2008. They discussed the benefits of organizing the Union at
Respondent and Montroy gave Carrillo a packet of Union information to give to Respondent’s
sheet metal employees.
On December 13, 2008, Montroy went to Respondent’s sheet metal fabrication shop at
6am with a box of doughnuts for the employees. When Carrillo learned of Montroy’s presence
he told Montroy he was not supposed to be there. Montroy left and returned to the shop at 8am
while the sheet metal employees were on a break in Respondent’s parking lot. Montroy spoke
to the employees about the Union for about 10 minutes and then left.
The organizing culminated in the Union filing a petition with the Board on March 13,
2009 in case 28-RC-6650 seeking to represent a bargaining unit of Respondent’s sheet metal
employees.
3. The Events at the MIM Jobsite
Respondent’s sheet metal employee Robert Jones (Jones) has worked at various
jobsites for Respondent since January 2005. Jones began work at the MIM jobsite installing
ductwork in November 2008. Jones had been a member of the Union for 12 years from 1986
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
4
until 1998 and rejoined the Union in April 2009. Respondent’s Sheet Metal Foreman on the
MIM jobsite, Scott Hartranft (Hartranft), was Jones’ supervisor.
On December 8, 2008, Jones spoke with Montroy at lunch off the MIM jobsite and
signed a Union authorization card.
On December 9, 2008, Hartranft was speaking to Respondent’s sheet metal workers
near their cars. Hartranft then came to Jones’ car where Jones was eating lunch and asked
Jones if he had seen or spoken to any Union representatives.2 Jones said he had not.
On December 10, 2008, Hartranft spoke to a group of Respondent’s sheet metal
employees after work near the box where tools and materials were stored. Hartranft told the
employees that if Montroy happened to come on a jobsite, the employees were not to speak to
him and were to notify Hartranft immediately of Montroy’s presence on the jobsite. Hartranft
said the employees were not allowed to speak to Montroy about the Union on company time
and that if employees were caught speaking to him they would probably be fired.
On December 15, 2008, at a morning meeting on the MIM jobsite Hartranft told about
four of Respondent’s sheet metal employees that if Montroy showed up at the jobsite they could
not speak to him. Hartranft told the employees that they could talk to Montroy or about the
Union only on their 30 minute lunch break and not on their 15 minute breaks as that was
company time. Hartranft also said that Respondent’s Sheet Metal Superintendent Shawn
Bowser said Respondent would close the doors if they went Union.3
In January 2009, Jones spoke with his co-workers about the Union during breaks and
also while working. From January to March 2009 Jones carpooled to and from work with
Respondent’s supervisor Tom Turner. During the time they shared in the car, Jones told Turner
that he supported the Union.
In early March 2009, at the MIM jobsite Respondent’s Superintendent Mike Longley
(Longley) addressed Respondent’s sheet metal employees. Longley read them a letter4 from
Plumbers Local 469 Business Manager Phil McNally. The letter, addressed to Local 469
members said in part:
Please be advised the consequences if, while on the clock, you fail to work or otherwise
engage in efforts to support the organizing effort you will be subject to discipline, up to
and including discharge.
Longley also and told the sheet metal employees that they were not allowed to discuss
organizing during company hours but only on employees’ lunch hour or on employees time or
after hours. Longley added that Respondent’s sheet metal employees were not permitted to
talk to the plumbers about organizing the Union. Longley said if a plumber walked up and
talked to them about the Union, they were to report it to Longley or Hartranft and that there
would be disciplinary action taken if the Union was discussed on company time.

2 Hartranft denied interrogating Jones about the Union. I credit Jones whose testimony was
detailed and given without animosity toward Respondent. Hartranft’s testimony was vague and
too tailored to the interests of Respondent.
3 Hartranft denied making these statements. For the reasons cited above, I credit Jones.
4 General Counsel’s Exh. 19.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
5
4. The Events at the BIMC Jobsite
Jones was transferred to the BIMC jobsite on March 19, 2009. When Jones reported to
the BIMC jobsite he was wearing an orange T-shirt with Union logo. During his first four days
on the BIMC job, Jones gave Union stickers to employees and talked to employees about
supporting the Union both during work and break time.
On March 27, 2009 Jones, wearing his orange Union t-shirt and hard hat with a Union
sticker affixed, asked employees if the wanted Union stickers to put on their hard hats.
Respondent’s BIMC Sheet Metal Foreman Harry Dempsey (Dempsey) observed Jones talking
to fellow employees about the Union. Dempsey called Bowser and told him Jones had been
talking about the Union. Soon thereafter Bowser and Brian Van Kuren Van Kuren),
Respondent’s Sheet Metal Superintendent at the BIMC jobsite, approached Jones. Bowser told
Jones that he was not allowed to organize, solicit for or speak about the Union during company
time, only on break time and after hours. Jones went back to work and talked about the Union
with the sheet metal employee with whom he was working. Later in the day Dempsey saw
Jones give a Union t-shirt to a fellow employee. Dempsey again called Bowser and told him
what he had seen. Shortly thereafter Bowser approached Jones with a written warning5 for
soliciting for the Union. Respondent does not prohibit its sheet metal employees from speaking
with each other during working time about a variety of non work related subjects. Dempsey
admitted that if he hears sheet metal workers talking too much on the job he merely admonishes
them to get back to work. Respondent permitted “check pools” at the BIMC jobsite. A “check
pool” is a form of gambling in which Respondent’s employees contributed money to a pool while
they were working. When the employees receive their paychecks they check the check
numbers to see if they have a winning poker hand and this determines who wins the pool of
money that has been collected. Respondent’s Foreman Turner has posted flyers for charity
motorcycle runs for his motorcycle club on the Conex, a box holding tools and materials, at the
MIM jobsite. These flyers solicited employees to come to a picnic and give money to a charity.
Longley solicited employees to bring food for a food drive while employees were in safety
meetings. Finally, Respondent has permitted Union stickers from the Plumber’s Union to be put
on gang boxes as well as stickers of cars.
5. The Events at the Shop
a. The Supervisory Status of Sheet Metal Shop Leadman Joshua Carrillo
Carrillo reported to Sheet Metal Shop Foreman Davies, who Respondent has admitted is
a supervisor within the meaning of the Act. Carrillo’s job duties as Leadman included
monitoring employees in the shop to ensure work is done, assigning work, interviewing job
applicants and making recommendations to Davies as to which employees to hire. Carrillo’s
recommendations were usually followed. Shop employee Jarrod Retzlaff (Retzlaff) was
interviewed by Carrillo over the phone in August 2008 and told he was hired. Shop employee
Pedro Chavez (Chavez), was hired by Carrillo to work in the shop in December 2008.
Employee Terrence Nielsen (Nielsen) interviewed solely with Carrillo and Carrillo hired him in
October 2008. Carrillo issued discipline to employees during the period December 13, 2008 to
January 10, 2009.6 During the period October 2008 to December 7, 2008, while Davies was on
medical leave, Carrillo filled Davies’ job.

5 General Counsel’s Exh. 20.
6 General Counsel’s Exhs. 21-24.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
6

b. Carrillo’s Conduct
On a December 13, 2008, Union agent Montroy went to Respondent’s fabrication shop
during a lunch break. The following Monday Carrillo told the shop employees that he knew
Montroy had been to the shop on Saturday. Carrillo said the employees should not expect to go
Union, that Respondent would never go Union and if the employees wanted a Union job to pack
your shit right now and go down to the hall because it was never going to happen. Carrillo
added he knew there were cards that had been floating around and anybody caught signing the
card would be gone. Carrillo said Respondent would close the doors on the company before
they went Union and the employees would all be out of work. Pedro Chavez (Chavez) said
Carrillo told a group of shop employees “he didn’t want nobody signing any—talking to the
sheet—the Union guys.”7 No other shop employee who was present at this meeting testified
that Carrillo made this statement. Moreover, it appears from the context of Chavez’ testimony
that he was confused about whether Carrillo was talking about signing union cards or prohibiting
talking to Union agents. I do not credit Chavez’ testimony.
Dennis Kupiec (Kupiec) is a leadman in Respondent’s shop and has been employed by
Respondent from September 2006 to the present. Kupiec testified that on December 15, 2008,
“There was something said about (the) union” by Carrillo. “He said that if you guys wanted to go
union, that’s on you, but as of right now, we have to continue working on our jobs.” Kupiec
could recall only this much of what Carrillo said even though he acknowledged Carrillo spoke for
about 10 minutes. When I asked Kupiec if Carrillo said anything else, he responded, “Well, I’m
just speculating. I don’t remember exactly everything that was said.” I conclude that Kupiec
was indeed speculating and I give no weight to his testimony.
Gregory Louis (Louis) has been employed in Respondent’s shop since about June 2008.
Louis testified that on December 15, 2008, Carrillo told employees:
If you want to go Union, no hard feelings, just let him know so he can have someone
replace us—replace them or whatever. Its something like that, something towards if you
wanted to go Union, you’re willing to go Union, just you can go ahead, and go just let
him know if he—do he has to replace you or something like that.8
Louis added:
It’s been a year so it’s hard to remember. Basically if you wanted to go Union you the
right to, willing to do—to go down to the Union if you wanted to. Just basically let him
know so he can replace you so, you know, stuff like that, you know. It’s hard to explain.9
Clearly Louis memory was lacking concerning the details of the employee meeting Carrillo
addressed on December 15, 2008. I give no weight to his testimony.
Later on December 15, 2008, Carrillo had a conversation with shop employee Paul
Bremie (Bremie) while loading a truck. Bremie asked Carrillo why Respondent would not go
Union. Carrillo replied it was because of an argument the owners had with Local 359 and that it
was not going to happen; that Respondent would close down before they went Union. From this

7 Transcript at page 496, lines 22-23.
8 Transcript at page 1118, lines 20-25
9 Transcript at page 1119, lines 10-15
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
7
point until March 16, 2009, Bremie observed Carrillo monitoring employees’ conversations in the
shop area.
A few weeks after shop employee Nathan Weimann (Weimann) was hired in December
2008, Carrillo asked if Bremie was having another union meeting. Thereafter, Carrillo asked
Weimann if he was having a union meeting each time he saw Weimann speaking with another
shop employee.
About a week or two after Carrillo’s December 15, 2008 shop employee meeting, Carrillo
held a meeting of shop employees and said the company doesn’t want to go Union. While
pointing his finger out the door, Carrillo said If employees want to pursue the Union, go ahead
and go, there was no ill will.
In December 2008 a short time after the December 15 shop meeting, Carrillo again met
with shop employees and told them:
He had said—he made he comment to us that if any of us were interested in joining the
sheet metal Union that he did—that neither him nor WD Manor had anything against us, but to
let them know so that we could get our final paychecks and go our separate ways because WD
Manor was not a Union shop and never will be. He had made the comment that WD Manor will
shut the shop’s doors before they ever became a Union sheet metal shop.10
On about January 20, 2008, a number of Union supporters went to Respondent’s facility
to apply for jobs. The following day Carrillo told the shop employees that their break location
had been changed and that they could not take breaks outside the door to the pubic parking
area but only outside in the work area that was segregated from public access. Three days
later Carrillo told employees they could not leave the shop through the main office but only
through the doors that led to the parking lot which Carrillo had to unlock. This policy made it
impossible for employees to use the break room in the main office which had been accessible
prior to this time. The shop employees used vending machines in the main office break room.
Later vending machines were put into the shop for employee use with higher prices for vending
items.
A few days after January 20, 2009, the Union agents drove vehicles past Respondent’s
facility during break time pulling pro-Union signs and honking their horns. Shop employees
were able to see the Union signs through the roll up door that opened to the public parking area.
Later that day Carrillo told employees that they could no longer take breaks by that door.
Respondent’s facility is located in a part of Phoenix that is not particularly safe. There
have been instances of thefts in Respondent’s facility and security has been an issue since at
least 2005.11 In November 2008, Respondent issued a memo12 instructing employees
concerning its policy regarding unauthorized visitors to its facility. The memo noted that there
had been instances of unauthorized persons in its facility. On January 27, 2009, Respondent
conducted a meeting concerning security issues at its facility. The memo13 of the meeting
discussed creation of a new break area in the shop, as well as monitoring of the north roll up
door in the shop.

10 Transcript page 639, lines 17-24.
11 Respondent’s Exh. 2.
12 General Counsel’s Exh. 13.
13 General Counsel’s Exh. 14.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
8
6. The Events at the Front Office
a. The Applications
On January 20, 2009, seven Union representatives and Union members went to
Respondent’s facility to apply for jobs as sheet metal workers. The seven included Montroy,
Donald Latham (Latham), a Business Agent for the Union, Mahelio Rico (Rico), an Organizer for
the Union, Marco Molina (Molina), a Business Representative for the Union and Lance Jameson
(Jameson), James Osteros (Osteros) and Fernando Lebron (Lebron), members of the Union.
All seven had been given permission by the Union to apply for jobs and work for Respondent.
All were available to work for Respondent and all were qualified to work as sheet metal workers.
Montroy, Rico, Molina, Osteros, and Lebron all wore caps, t-shirts or jackets that contained
easily readable Union logo.
Latham and Jameson were the first to arrive at Respondent’s facility on January 20,
2009. They wore no clothing items that identified them as Union supporters. Admission to
Respondent’s office is accomplished by means of a remotely controlled clear glass door
operated by Respondent’s Receptionist Ruth Patterson (Patterson). A visitor must press a
buzzer that notifies Patterson of a visitor’s presence. A speaker system also operated by
Patterson allows a conversation between Patterson and the visitor. Latham pressed the buzzer
to gain entrance and Patterson asked if she could help him. Latham said he was there to fill out
an application. Patterson admitted Latham and Jameson and gave them applications which
they proceeded to fill out.
A few minutes later, Montroy, Rico, Molina, Osteros, and Lebron arrived at Respondent’s
office and walked to the front door. Montroy pressed the buzzer and Patterson asked if she
could help him. Montroy said they were there to fill out applications for sheet metal jobs.
Patterson said Respondent was not hiring. Montroy said he saw two people filling out
applications and Patterson said that they had been invited in. Montroy said he did not think the
two were invited in and that they wanted to fill out applications. Patterson said no. Montroy
asked if she was denying them applications and Patterson made no reply. Montroy said we are
sheet metal workers and will give eight hours work for eight hours pay. Patterson said
Respondent was not hiring. Montroy asked if she was discriminating against them because of
their Union affiliation and Patterson made no reply. Montroy again asked for applications and
Patterson repeated Respondent was not hiring. Montroy once again asked if she was
discriminating because they were Union members.
When Patterson made no reply, Montroy decided to leave. Just as the applicants were
leaving, Montroy observed than about 10 men appeared inside Respondent’s front office
including Shawn Bowser and Brian DeWitt. DeWitt came outside and asked if could help.
Montroy said they were there to fill out applications for employment and that Patterson was
denying them applications. DeWitt went back into the office and returned with applications.
Montroy asked if they could go into the office and fill out the applications and DeWitt replied,
while stepping toward Montroy, “Do you need to?” The five Union supporters filled out
applications but Montroy and Molina did submit the applications because they felt intimidated.
The other five completed applications and gave them to Patterson. At no time have the five
employees who submitted applications been offered employment with Respondent.
While the five job applicants waited outside the office, DeWitt went into the office and in
the presence of both job applicants Latham and Jameson told Patterson, “If this happens again
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
9
you can just call 911 and tell them that you feel threatened and that they would come and take
the guys away for a couple of hours. Take them to jail.’‘14
A few moments later, Bowser approached Latham, one of the two applicants still inside
the office filling out applications, and asked if he was Don. Latham replied he was. Bowser
walked away for a few minutes and later returned and asked Latham, “Hey, you’re with the
Union, right?” and Latham responded that he was. Bowser also asked Jameson, the other
applicant in the office, “if I was part of Local 359.” Jameson replied that he was not.
Patterson testified that Montroy yelled at her, harassed, and intimidated her. However,
a review of Montroy’s recording15 made at the time he was present at Respondent’s facility on
January 20, 2009, clearly establishes that at no time did he or any other job applicant yell,
intimidate or harass Patterson.
b. Patterson’s Duties
Patterson has been Respondent’s front desk receptionist for 10 years. Her duties
include answering the phone, typing and directing guests and visitors who come into
Respondent’s main office.
Patterson keeps herself informed if Respondent is hiring by asking Bowser, who is
responsible for Respondent’s sheet metal manpower needs. She requires this information to
inform job applicants if Respondent is hiring. While Patterson testified that Respondent had
stopped hiring sheet metal employees in late 2008 and early January 2009, the record reflects
29 sheet metal employees were hired from about January 19 to the end of March 2009
timeframe.16
Patterson told job applicants who called the office to come down to the office and fill out
a job application. Patterson also informed job applicants whether Respondent was hiring.
Patterson usually told applicants at Respondent’s office if there were no openings but would
give the applicant a job application form if the applicant wanted one. The applicant was always
allowed to fill out the application inside the office. After the job applicant filled out the
application, Patterson will make sure the applicant has signed the application. Patterson put it in
the in-box for the appropriate hiring official. Bowser got all applications for sheet metal jobs.
7. Respondent’s Hiring Practice
Bowser is responsible for hiring Respondent’s sheet metal employees in the field.
Bowser maintains a list of sheet metal applicants for five years. In making hiring decisions
Bowser relies on referrals, an applicant’s experience, qualifications, certifications, loyalty to
Respondent and training. Because jobs have a budget for labor costs some sheet metal
employees are hired at a varying range of hourly wages and experience. Bowser said he
keeps a favorites list of applicants as well as a phone list of applicants.
Despite Bowser’s testimony to the contrary, Respondent was hiring sheet metal
employees at the time the seven Union applicants came to Respondent’s facility on January 20,
2009. Thus, from January 20 to January 30. 2009 Respondent hired 19 sheet metal

14 Transcript page 707, lines 15-18.
15 General Counsel’s Exhs. 81 and 82.
16 General Counsel’s Exh. 46.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
10
employees. It appears that after January 20, 2009 Respondent hired 28 sheet metal
employees17 in addition to temporary labor. While Bowser said a sheet metal license was a
prerequisite for an applicant to be hired, many of those hired by Respondent in January 2009
did not have such licenses.18 Moreover, while Bowser said completing an applications and
providing additional information concerning their qualifications was an important factor in the
hiring process, many of those hired after January 20, 2009 did not complete their applications or
provide additional qualifications. 19 In addition in January 2009 Respondent hired two sheet
metal employees who reported on their applications that they had been convicted of felonies. 20
The record establishes that the seven Union applicants who applied for sheet metal jobs
at Respondent’s facility on January 20, 2009, were qualified sheet metal workers.
8. The Nathan Weimann Termination
Weimann was employed by Respondent in its fabrication shop as a sheet metal worker
from December 17, 2008 until January 12, 2009. Weimann replied to a newspaper ad
Respondent had placed for sheet metal workers. On about December 10, 2008, Weimann was
interviewed by both Carrillo and Shop Foreman Trevor Davies. Weimann wore a Union shirt to
the interview. Carrillo asked the questions and asked Weimann if he was in the Union.
Weimann said he had been a member for five years. After the interview Carrillo told Weimann
he would call him that afternoon. When Carrillo did not call, Weimann called Carrillo the next
day and left a message. A week later Carrillo offered Weimann a job in the shop. After he was
hired, Weimann spoke to shop employees about the Union in the work area, including leadman
Dennis Kupiec and Davies’ son Jeremy. A few weeks after he was hired, after Weimann had a
conversation with another employee, Carrillo came up to Weimann asked Weimann if he was
having another union meeting. Carrillo said this to Weimann each time he saw Weimann
speaking with another shop employee. Weimann signed an authorization card in December
2008.
On January 12, 2009 Weimann and shop employee Jessie Wilson (Wilson) were
assembling a large sheet metal fitting consisting of several interlocking parts that had been
made by shop employee Jarrod Retzlaff (Retzlaff). Initially Weimann and Wilson had difficulty
assembling the fitting and Carrillo yelled at them for not working fast enough. Weimann told
Carrillo the fitting could be fixed and Weimann completed the fitting. When Weimann went to
ship out the fitting, it was discovered that Retzlaff had made the fitting parts in the wrong size.
Leadman Kupiec told Carrillo the fitting was the wrong size, that it was not Weimann’s fault and
that the fitting could be fixed. Later that day Carrillo called a shop employee meeting and yelled
at the employees saying they were all incompetent. Carrillo threw down his clipboard and told
Weimann and Wilson to “pack your shit and get out.”21 Weimann got his tools and went outside
the shop. Later Weimann spoke with Carrillo and asked what the problem was. Carrillo replied
that Weimann could not complete the work correctly. Weimann said “shit happens.” Carrillo
yelled at Weimann, “Oh, shit happens. Is that your attitude towards life? If that’s your attitude I
don’t’ need people in here like you stirring up trouble.” Weimann said, “What are you talking
about?” Carrillo told him, “You know exactly what I’m talking about. All the shit you been in

17 General Counsel’s Exh. 39, 40 and 46.
18 General Counsel’s Exhs. 39 and 40.
19 General Counsel’s Exhs. 35, 37, 60, 66 and 69.
20 General Counsel’s Exhs. 35 and 66.
21 Carrillo admitted that he told both Weimann and Wilson to get their tools and bring them
to his office. While
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
11
here talking.” When Weimann said Carrillo couldn’t freak out on the employees for a simple
mistake, Carrillo replied again, “I don’t need people like your kind in here stirring up trouble.”
Weimann threw up his arms and Carrillo told him, “You need to pack your shit and get the fuck
out right now.”22
According to shop employee Louis, Weimann told Carrillo, “I’m grabbing my tools, I
quit.”23 Louis admitted he was 20 feet from Weimann and could not hear what was being said.
Louis said that Weimann then came by where he and other employees were standing and said,
“he quit and said he’d see us later.” 24 Louis later testified, in response to a question if he heard
Weimann say he quit, testified, “Yeah, I heard him say it. Well he came by me—he told
everybody bye. So, you know, I quit.”25 Based upon this confusing testimony as well as my
earlier credibility assessment of Louis, it is clear that Louis’ recollection of what Weimann said is
poor and I will give no credit to his testimony.
Weimann got his tools and left. Carrillo issued Weimann a written warning26 on
January 12, 2009 for unsatisfactory work quality and fired him that same day for poor work
performance.27 According to Weimann in the past he and other employees had made similar
mistakes with fittings28 at least once a week without receiving a warning.
9. The Termination of Retzlaff, Brimie, Chavez, Duffy and Neilsen
Retzlaff, Brimie, Pedro Chavez (Chavez), Charles Duffy (Duffy) and Terrance Nielsen
(Nielsen) were all employed by Respondent as sheet metal workers in its shop.
Retzlaff was hired by Respondent in the shop in January 2004, fired in July 2007 and
rehired by Carrillo in August 2008. Retzlaff discussed the Union with other shop employees and
signed an authorization card. Retzlaff also talked to shop employee Greg Lewis about the Union
and Retzlaff found that Lewis gave Carrillo all the information Retzlaff had given him. On
February 23, 2009, when the Union learned Carrillo found out about Retzlaff’s Union activity, the
Union sent Respondent a letter29 identifying Retzlaff as a member of the Union organizing
campaign. Retzlaff talked to Montroy several times in the parking lot of a business adjacent to
Respondent’s facility and Retzlaff wore a Union t-shirt to work in the presence of Carrillo and
Davies.
Chavez was hired by Carrillo to work in Respondent’s the shop in December 2008.
Chavez signed an authorization card and became a member of the Union.

22 Carrillo testified he could not recall exactly what was said during these conversations with
Weimann. While Carrillo’s version of these conversations varied somewhat from Weimann’s,
Carrillo did not deny the substance of Weimann’s testimony. Given Carrillo’s lack of recollection
and the failure to deny Weimann’s testimony, I will credit Weimann’s testimony.
23 Transcript page 1127, lines 22-23.
24 Transcript page 1127, line 25.
25 Transcript page 1128, lines 9-13.
26 General Counsel’s Exh. 24.
27 General Counsel’s Exh. 25.
28 Carrillo admitted that employees made mistakes with fittings that caused the metal to be
discarded.
29 General Counsel’s Exh. 18.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
12
Brimie was hired by Respondent to work as a plumber in October 2008 and was
transferred to the shop by Carrillo in December 2008. In February 2009 Carrillo told Brimie that
there would be layoffs in the shop and sent Brimie to work in the field as a sheet metal worker
installing ductwork. Two weeks later Carrillo told Brimie to return to the shop since shop work
was picking up. Brimie was a Union member and spoke to other shop employees about the
Union. Brimie also had Union stickers on his tool box at work and had a Union sticker in the
window of his truck that was parked on the street near Respondent’s facility.
Duffy was hired by Respondent on November 16, 2008 to work in the shop. Duffy was
interviewed by both Carrillo and Davies but Carrillo asked all of the questions. Carrillo called
Duffy to tell him he had been hired. Duffy spoke to other shop employees about the Union at
work and became a member of the Union in March 2009. Duffy also signed an authorization
card. In March 2009 Duffy was seated with Brimie in Brimie’s truck that had a visible Union logo
while Montroy was in a car parked near Bremies’ truck. At this time DeWitt came out of
Respondent’s facility and passed near Brimies’ truck.
Nielsen was hired as a sheet metal apprentice in the shop by Carrillo in October 2008.
Nielsen signed an authorization card in March 2009.
On March 16, 2009, Respondent fired all five employees citing a reduction in force30 as
the reason for the terminations.
10. The Use of Temporary Labor
Respondent subcontracted for temporary labor in the field to perform sheet metal
installation. Respondent used CLP Resources Inc. for temporary sheet metal workers at the
MIM jobsite. Respondent signed a subcontractor authorization agreement with CLP Resources
on April 4, 2009,31 yet began using CLP Resources for temporary sheet metal workers on
March 22, 2009.32 From March 22, 2009 April 12, 2009, Respondent used at least five CLP
employees each week in the field.33
During this same time frame, Respondent utilized Allied Forces for temporary sheet
metal workers at the BIMC jobsite. Invoices34 from Allied reflect that Respondent paid Allied for
temporary sheet metal labor during the March through May 2009 timeframe in the following
amounts:
March 13, 2009 - $ 977.44
March 20, 2009 - $5,740.60
March 27, 2009 - $5,627.20
April 3, 2009 - $5,238.40
April 10, 2009 - $1,705.60
April 17, 2009 - $2,646,40
April 24, 2009 - $1,762.65
May 1, 2009 - $3,098.08
May 8, 2009 - $1,432.00

30 General Counsel’s Exhs. 41-45.
31 General Counsel’s Exh. 5.
32 General Counsel’s Exh. 6.
33 General Counsel’s Exhs. 6-10.
34 General Counsel’s Exh. 11.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
13
Contrary to Respondent’s assertion in its brief that sheet metal employees did not transfer from
the shop to the field, Petty indicated he did not know how often such transfers occurred.35
Indeed Carrillo transferred shop employee Brimie to the field. Further Respondent uses both
experienced and inexperienced sheet metal employees in the field.36
11. Outsourcing Fabrication Work
Respondent was awarded a $6,000,000 subcontract to install heating and air
conditioning systems at the MIM in July 2007. The first construction drawings for air
conditioning systems were made in the summer of 2008. In fall of 2008 Respondent began
fabricating sheet metal for the MIM job. In November 2008 blueprints were prepared for
ductwork to be fabricated and installed. However it was not until January 2009 that Respondent
had prepared its ductwork layouts to commence duct installation. In mid January 2009, the MIM
general contractor wanted Respondent to complete its installation of ductwork by February 24,
2009.37 However this date was modified to March 31, 2009.38 Petty testified that these new
schedules were adhered to within “maybe a week here and there.” However, the Omni
purchase orders39 indicate that ductwork was still being delivered as late as April 28, 2009.
Respondent was also awarded a $10,000,000 subcontract to install heating and air
conditioning systems at the BIMC in the summer of 2008. It was not until the last three months
of 2008 that Respondent was able to start making duct drawings at BIMC. Respondent had
completed the majority of the duct installation at BIMC by the end of March 2009, but
Respondent did not complete its work at BIMC until the summer of 2009.
In about December 2008, Respondent made an estimate of the number of man hours
necessary to fabricate ductwork for the MIM and BIMC jobs.40 The estimate indicated that it
would take 43 fabrication employees to create the ductwork for the two jobs. There was also
ongoing fabrication work for Respondent’s jobs at Mayo Hospital and General dynamics during
the January to March 2009 time period.
In January 2009 Respondent contracted with a duct making company named Omni Duct
Systems, (Omni) to fabricate duct for the MIM and BIMC jobs because Respondent’s fabrication
shop did not have the capacity to perform all the work required at Respondent’s various jobs.
As early as November 3, 2008, a memo41 from Respondent’s Executive Vice President Petty
reflects that Respondent’s shop did not have the capacity to handle the duct requirements of
both MIM and BIMC.
In a March 2, 2009 memo42 Petty indicated that fabrication work for the BIMC had
dropped significantly, that peak demand for labor at BIMC would be reached in late March 2009
with a reduction in workforce by early April, that at MIM outsourcing of duct fabrication would

35 Transcript page 106, lines 10-13.
36 Transcript page 105, lines 7-22.
37 Respondent’s Exh. 30.
38 Respondent’s Exh. 31.
39 Respondent’s Exh. 32.
40 Respondent’s Exh. 29.
41 Respondent’s Exh. 21.
42 Respondent’s Exh. 25.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
14
continue due to scheduling requirements and that manpower needs at the MIM would remain
static until May 2009. Respondent maintains that it continued to subcontract duct work to Omni
after the BIMC duct requirements had dropped significantly in March 2009 because Omni had a
short turn around time for delivering duct. Invoices43 to Omni reflect that there was a 2 to 10
day delay from the time Omni quoted a price to Respondent until the ducts were delivered.
However, Petty explained that it took an additional two weeks from the time Respondent gave
Omni the specifications for duct work until Omni provided the quote. Petty said Respondent
needed two weeks lead time to fabricate sheet metal, about the same time Omni was given, and
Respondent’s fabrication shop could not have provided the sheet metal listed on Respondent’s
exhibit 32 in the time frames listed there but did not explain why it could not. Petty admitted that
Respondent’s fabrication shop would not have the lag time waiting for a quote from Omni.
Invoices reflect that ongoing sheet metal ductwork was being fabricated by Omni for the MIM
from March 16, 2009 to April 24, 2009 valued at $191,819.44 Omni fabricated ductwork for the
BIMC job from March 25, 2009 to April 8, 2009 valued at $2811.45
B. The Analysis
For clarity of analysis I will discuss each allegation of the Complaint in the order they
appear in the Complaint.
1. The 8(a)(1) Allegations
The Complaint allegations in paragraphs 5(a) through paragraph 5(k) accuse
Respondent of engaging in conduct that violates Section 8(a)(1) of the Act. Respondent’s
alleged conduct includes interrogation, surveillance, threats to employees, overly broad and
discriminatory no solicitation rules and statements of futility for engaging in protected activity.
a. The Law
(1) Interrogation
In Westwood Healthcare Center, 330 NLRB 935 (2000) the Board discussed the test to
determine whether interrogation is unlawful under Section 8(a)(1) of the Act. In Westwood the
Board applied the totality of the circumstances test adopted in Rossmore House, 269 NLRB
1176 (1984). The Board said it would look at five factors to determine whether the questioning
of an employee constitutes an unlawful interrogation:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be seeking
information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to the
boss's office? Was there an atmosphere of unnatural formality?

43 Respondent’s Exh. 32.
44 General Counsel’s Exh. 12, page 1.
45 Id. at page 2.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
15
(5) Truthfulness of the reply.46
The Board added:
In the final analysis, our task is to determine whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is
directed so that he or she would feel restrained from exercising rights protected by
Section 7 of the Act.47
(2) Surveillance
In Promedica Health Systems, Inc., 343 NLRB 1351, 1352 (2004), the Board reaffirmed
long held Board law that an employer who creates the impression employees’
protected/concerted activities are under surveillance violates Section 8(a)(1) of the Act.
The Board’s test for determining if an employer has created an impression of
surveillance is:
. . . whether the employee would reasonably assume from the statement in question that
his union activities had been placed under surveillance [citation omitted]. U.S.
Coachworks, Inc., 334 NLRB 955, 958 (2001).
The Board has found that a supervisor’s statement that “it’s an open secret that you’ve
joined the Union.” Daikichi Corp. d/b/a/ Daikichi Sushi, 335 NLRB 622, 623 (2001); that she had
“heard that there was a list circulating with 80 names,” Martech Medical Products, Inc., 331
NLRB 487 (2000) fn.4; that he had “heard” rumors about the employee's union activity; Flex-
steel Industries, 311 NLRB 257 (1993); asking employee Barnes how the conversations went
that he and other employees had had with union organizers on the roof at the Birney school
earlier that day, In re Fred'k Wallace & Son, Inc., 331 NLRB 914 (2000); that “I know you are the
one that is disbursing Union cards out.” U.S. Coachworks, Inc., 334 NLRB 955, 958 (2001) all
created the impression employees’ union activities were under surveillance in violation of
Section 8(a)(1) of the Act.
(3) Threats
The Board’s well established test to determine if there has been a violation of Section
8(a)(1) of the Act is whether the employer engaged in conduct which might reasonably tend to
interfere with the free exercise of employee rights under Section 7 of the Act. American
Freightways Co., 124 NLRB 146 (1959). Employer conduct that violates Section 8(a)(1) of the
Act includes threats to employees of discharge for engaging in protected activity [NLRB v.
Neuhoff Bros. Packers, 375 F. 2d 372 (5th Cir. 1967); C.P. Associates, Inc., 336 NLRB 167
(2001); Seton Co., 332 NLRB 797 (2000)], threats of plant closure in retaliation for engaging in
union activity [Mid-South Drywall Co., Inc., 339 NLRB 480 (2003); Daikichi Corp. d/b/a Daikichi
Sushi, 335 NLRB 622, 623 (2001); Crown Cork and Seal Co., 255 NLRB 14 (1981)], threats of
unspecified reprisals for engaging in protected activity [SKD Jonesville Division L.P., 340 NLRB
101 (2003)], statements that it is futile to organize [Federated Logistics and Operations, 340
NLRB 255 (2003); Overnite Transportation Co., 296 NLRB 669 (1989)], directing employees to
notify the employer of the union’s presence on a jobsite [Gold Shield Security and

46 Westwood at page 939.
47 Id. at page 940.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
16
Investigations, Inc. 306 NLRB 20, 22 (1992)], threats to exclude union agents from a jobsite
[Swardson Painting Co., 340 NLRB 179 (2003)], telling employees to disclose union activity of
other employees [Bloomington-Normal Seating Co. 339 NLRB 191, 193 (2003); Tawas
Industries, Inc., 336 NLRB 318, 322 (2001)], threats to call police [Labor Ready, Inc., 327 NLRB
1055, 1057-1058. (1999)] and telling employees to quit in retaliation for engaging in protected
activity [Equipment Trucking Co., Inc., 336 NLRB 277 (2001); Eby-Brown Company L.P., 328
NLRB 496 (1999)].
(4) Overly Broad No-Solicitation Rules
For over 65 years the Supreme Court48 and the Board49 have recognized employee
rights to solicit on behalf of a labor organization during non-work time on an employer’s
premises. The Board has drawn a distinction between oral solicitation and distribution and has
permitted limitation on distribution of literature during working time and in working places.50
However, the Board has repeatedly instructed that the term “company time” or “work hours” is
inherently ambiguous and thus presumptively unlawful, because it connotes all hours of the
workday, including employees’ break and lunch times. St. George Warehouse, Inc., 331 NLRB
454, 462 (2000), enfd. 261 F. 3d 493 (3d Cir. 2001). A clarification of an ambiguous rule or a
narrowed interpretation of an overly-broad rule must be communicated effectively to the
employer’s workers to eliminate the impact of a facially invalid rule. Laidlaw Transit, Inc., 315
NLRB 79, 83 (1994). “Any remaining ambiguities concerning the rule will be resolved against
the employer, the promulgator of the rule.” Teletech Holdings, 333 NLRB 402, 403 (2001), citing
Norris/ O’Bannon, 307 NLRB 1236, 1245 (1992).
Counsel for the General Counsel cites Jensen Enterprises, Inc., 339 NLRB 877, 878
(2003) and Teledyne Advanced Materials, 332 NLRB 539 (2000), for the proposition that an
employer may not ban mere talking about the union. For three reasons General Counsel’s
reliance on these cases is misplaced. First the Board has held that an employer may forbid
employees from talking about a union during work times. Jensen Enterprises, Inc., at 878.
Second, these cases involved discriminatory application of no talking rules. Third both of these
cases are pre Register-Guard Publishing Co., 351 NLRB 1110 (2007).
In The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB 1110 (2007) a
majority of chairman Battista and members Kirsanow and Schaumber with members Liebman
and Walsh dissenting reversed a long line of Board cases dealing with discriminatory
enforcement of work rules. Citing two 7th Circuit decisions51 the Board adopted a new standard
for determining if an employer’s discriminatory enforcement of work rules violates Section
8(a)(1) of the Act. The Board held it would no longer be sufficient to show that an employer
merely disparately enforced its rules but it must be shown that
[U]nlawful discrimination consists of disparate treatment of activities or communications
of a similar character because of their union or other Section 7-protected status, and we
shall apply this view in the present case and in future cases.”52
In an attempt to define what constitutes similar activities the Board elaborated:

48 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
49 Peyton Packing Co., 49 NLRB 828 (1943).
50 Stoddard-Quirk Mfg . Co., 138 NLRB 615 (1962).
51 349 F.3d 968 (7th Cir. 2003) and 49 F.3d 317 (7th Cir. 1995).
52 351 NLRB at page 1118.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
17
For example, an employer clearly would violate the Act if it permitted employees to use
e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion
employees but not by prounion employees. In either case, the employer has drawn a
line between permitted and prohibited activities on Section 7 grounds. However, nothing
in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an
employer may draw a line between charitable solicitations and noncharitable
solicitations, between solicitations of a personal nature (e.g., a car for sale) and
solicitations for the commercial sale of a product (e.g., Avon products), between
invitations for an organization and invitations of a personal nature, between solicitations
and mere talk, and between business-related use and non business-related use.53
b. The Complaint Allegations
(1) Complaint Paragraph 5(a) the alleged December 2, 2008, Carrillo interrogation of
employees about their union sentiments.
At the hearing I granted Counsel for the General Counsel’s Motion to Amend to the
complaint deleting Allegation 5(a).

(2) Complaint Paragraph 5(b)(1) the alleged December 9, 2008, Hartranft surveillance.
(3) Complaint Paragraph 5(b)(2) the alleged December 9, 2008, Hartranft interrogation.
Counsel for the General Counsel contends that Respondent’s Sheet Metal Foreman on
the MIM jobsite, Scott Hartranft both created the impression employees’ union activities were
under surveillance and engaged in interrogation about employees’ union activities on December
9, 2008, when he talked to employees by their parked cars and when he came to Jones’ car and
asked Jones if he had seen or spoken to any Union representatives. Respondent counters that
there can be no surveillance where the employees engage in open and public activity.
The employees Hartranft spoke to were in their cars on a public street. There is no
evidence of what Hartranft said to other employees and I will not draw an inference that he said
the same thing to the other employees that he said to Jones. Under such circumstances and
considering Hartranft’s statement to Jones, I do not find that Jones would reasonably assume
that his union activities had been placed under surveillance. I will dismiss Complaint paragraph
5(b)(1).
On the other hand, it is clear that Hartranft’s statements to Jones constituted unlawful
interrogation about his union activities as alleged in Complaint paragraph 5(b)(2). Westwood
Healthcare Center, 330 NLRB No. 141 (2000).
(4) Complaint Paragraph 5(b)(3) the alleged December 9, 2008 overly-broad rule
prohibiting employees from speaking with Union agents during non-working hours.
(5) Complaint Paragraph 5(b)(4) the alleged December 9, 2008 Hartranft threat to
employees to notify Respondent of the Union’s presence on the jobsite.

53 Id. at page 1118.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
18
(6) Complaint Paragraph 5(b)(5) the alleged December 9, 2008 Hartranft threat to
employees that Union representatives would be excluded from the jobsite.
No evidence was adduced concerning this allegation and it will be dismissed.
(7) Complaint Paragraph 5(b)(6) the alleged December 9, 2008 Overly-broad rule
prohibiting employees from talking to Union representatives on company time.
(8) Complaint Paragraph 5(c)(1) the alleged December 10, 2008 Hartranft reaffirmation
of the overly-broad rule prohibiting employees from discussing the Union with other
employees on company time.
(9) Complaint Paragraph 5(c)(2) the alleged December 10, 2008 Hartranft threats of
discharge.
The record is devoid of any violative conduct by Hartranft on December 9, 2008, other
than the surveillance and interrogation discussed above. However, the evidence adduced
reflects that on December 10, 2008, Hartranft engaged in the conduct set forth in Complaint
allegations 5(b)(3) through 5(b)(6).54
Counsel for the General Counsel takes the position that Hartranft’s December 10, 2008
statements to employees that if Union agent Montroy happened to come on a jobsite that the
employees were not to speak to him and were to notify Hartranft immediately if he showed up
on the jobsite and Hartranft’s later reaffirmation that the employees were not allowed to speak to
Montroy on company time and that if employees were caught speaking to him they would
probably be fired violated Section 8(a)(1) of the Act by promulgating an overly-broad and
discriminatory rules against speaking with the Union’s representatives or with each other about
the Union on company time, by threatening employees by requiring them to inform management
of Union activities, by threatening them that Union agents would be discriminatorily excluded
from the jobsite and by threatening discharge if they spoke with Union agents.
Respondent contends that Hartranft was simply enforcing the general contractor’s
requirements prohibiting unauthorized visitors on the jobsite. Respondent argues that no
evidence was submitted in support of Complaint paragraph 5(c)(2).
Hartranft’s admonition to employees that they could not speak to Union agent Montroy
on the jobsite during company time clearly violated longstanding Board law that the limitation to
“company time” ambiguously may confuse employees into believing that they cannot engage in
union activity or solicitation from the time they come to work until the time they leave. Such a
rule violates Section 8(a)(1) of the Act as alleged in Complaint paragraphs 5(b)(3), 5(b)(6), and
5(c)(1). St. George Warehouse, Inc., 331 NLRB 454, 462 (2000).
Hartranft’s direction that employees should tell him if Union agents appeared on the
jobsite likewise violated Section 8(a)(1) of the Act as it tended to prevent Montroy from speaking
to employees and thus threatened, restrained and coerced employees in the exercise of their
Section 7 rights as alleged in Complaint paragraph 5(b)(4). Gold Shield Security and
Investigations, Inc. 306 NLRB 20, 22 (1992).

54 Since the matter was fully litigated, I will consider the conduct which occurred on
December 10, 2008 as supporting the allegations contained in Complaint paragraphs 5(b)(3)
through 5(b)(6). Hi-Tech Cable Corp., 318 NLRB 280 (1995).
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
19
Finally Hartrantf’s threat to enforce the overly broad no solicitation rule by threat of
discharge was designed to restrain employees in the exercise of their Section 7 rights to engage
in union activity as alleged in Complaint paragraph 5(c)(2). C.P. Associates, Inc., 336 NLRB
167 (2001).
Respondent’s defense that Hartranft was simply enforcing the general contractor’s policy
to exclude unauthorized visitors to the jobsite is without merit. There is no evidence that
Montroy was an unauthorized visitor. Moreover, it was not established that Respondent or the
general contractor had an exclusionary property interest, justifying its exclusion of Montroy from
the jobsite. Swardson Painting Co., 340 NLRB 179 (2003).
(10) Complaint Paragraph 5(d)(1) the alleged December 15, 2008 Carrillo threats of
discharge.
(11) Complaint Paragraph 5(d)(2) the alleged December 15, 2008 Carrillo impression of
surveillance.
(12) Complaint Paragraph 5(d)(3) the alleged December 15, 2008 Carrillo threat to
employees who supported the Union.
(13) Complaint Paragraph 5(d)(4) the alleged December 15, 2008 Carrillo threat to
close the facility.
(14) Complaint Paragraph 5(d)(5) the alleged December 15, 2008 Carrillo threat to
close the sheetmetal side of the facility.
(15) Complaint Paragraph 5(d)(6) the alleged December 15, 2008 overly-broad rule
prohibiting employees from discussing the Union.
(16) Complaint Paragraph 5(d)(7) the alleged December 15, 2008 Carrillo threat to
employees to quit if they supported the Union.
(17) Complaint Paragraph 5(d)(8) the alleged December 15, 2008 Carrillo statement
that it would be futile to support the Union.
A finding that Carrillo’s statements violated Section 8(a)(1) of the Act depends upon
whether he is a supervisor within the meaning of the Act.
Carrillo reported to Sheet Metal Shop Foreman Davies, who Respondent admitted is a
supervisor within the meaning of the Act. Carrillo’s job duties as Leadman included monitoring
employees in the shop to ensure work is done, assigning work, interviewing job applicants and
making recommendations to Davies as to which employees to hire. Carrillo’s recommendations
were usually followed. Shop employee Jarrod Retzlaff was interviewed by Carrillo over the
phone in August 2008 and told he was hired. Shop employee Pedro Chavez was hired by
Carrillo to work in the shop in December 2008. Employee Terrence Nielsen interviewed solely
with Carrillo and Carrillo hired him in October 2008. Carrillo issued discipline to employees
during the period December 13, 2008 to January 10, 2009. During the period October 2008 to
December 7, 2008, while Davies was on medical leave, Carrillo filled Davies’ job.
Section 2(11) of the Act provides that a supervisor is:
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
20
Any individual having authority, in the interest of the employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such authority is not
merely routine or clerical in nature, but requires the use of independent judgment.
The possession of any one of these authorities is sufficient to deem the employee invested with
such authority as a supervisor. American Commercial Barge Line Co., 337 NLRB 1070 (2002);
Westwood Health Care Center, 330 NLRB 935 (2000). One who can effectively to recommend
the actions described in Section 2(11) are supervisors. Sun Refining & Marketing Co., 301
NLRB 642, 649-650 (1991).
It is clear that during Davies’ absence from work from October 2008 to December 7,
2008, Carrillo functioned as a statutory supervisor. However, the evidence also shows that
when Davies was at work Carrillo effectively recommended hiring and discipline that Davies
invariably followed. Thus, Carrillo is a supervisor within the meaning of the Act.
Counsel for the General Counsel contends that Carrillo’s December 2008 statements
that employees would need to “pack their shit” and leave, that they would no longer have jobs,
that Respondent would close its doors, that employees would need to be replaced, and if
employees’ signed Union cards, they would no longer have jobs, Respondent violated Section
8(a)(1) of the Act. Respondent contends that Carrillo’s statements were not threatening.
Contrary to Respondent’s contention, in the context of a Union agent recently visiting
Respondent’s shop, Carrillo’s threats that employees would be fired for engaging in Union
activity, that Respondent would close its doors before they went union, that employees should
pack their shit and leave, and that employees would no longer have jobs reasonably interfered
with the free exercise of employees’ rights under the Act and violated Section 8(a)(1) of the Act
as alleged in Complaint paragraphs 5(d)(1), (3), (4), (5) and (7). C.P. Associates, Inc., 336
NLRB 167 (2001); Seton Co., 332 NLRB 797 (2000); Mid-South Drywall Co., Inc., 339 NLRB
480 (2003); Daikichi Corp. d/b/a Daikichi Sushi, 335 NLRB 622, 623 (2001); SKD Jonesville
Division L.P., 340 NLRB 101 (2003); Equipment Trucking Co., Inc., 336 NLRB 277 (2001); and
Eby-Brown Company L.P., 328 NLRB 496 (1999).
Counsel for the General Counsel argues that Carrillo’s statement that he was aware a
Union agent had been to the shop and that cards were being passed around violates Section
8(a)(1) of the Act by creating the impression employees’ union activities were under
surveillance.
Clearly, from Carrillo’s statements the shop employees would reasonably assume that
Respondent had placed their Union activities under surveillance. U.S. Coachworks, Inc., 334
NLRB 955, 958 (2001). This conduct violated Section 8(a)(1) of the Act as alleged in
Complaint paragraph 5(d)(2).
The only evidence adduced by Counsel for the General Counsel to support the
allegation in Complaint paragraph 5(d)(6) was Pedro Chavez testimony that Carrillo told a group
of shop employees “he didn’t want nobody signing any—talking to the sheet—the Union guys.”
As noted above at page 7, I have not credited Chavez. Thus there is no credible evidence to
support the allegations contained in Complaint paragraph 5(d)(6) and I will dismiss this
allegation.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
21
Carrillo’s statements that employees should not expect to go Union and if the employees
wanted a Union job to pack your shit right now and go down to the hall because it was never
going to happen also violated Section 8(a)(1) of the Act by suggesting it would be futile to
support the Union as alleged in Complaint paragraph 5(d)(8). Federated Logistics and
Operations, 340 NLRB 255 (2003).
(18) Complaint Paragraph 5(e)(1) the alleged December 18, 200855 Carrillo impression
of surveillance.
Counsel for the General Counsel contends that Carrillo’s observation of employee
conversations in the shop area after December 15, 2008 and by asking shop employee
Weimann in late December 2008 or early January 2009 if he was having another union meeting,
created the impression employee’s union activities were under surveillance.
Under the U.S. Coachworks, Inc., test, I find Carrillo’s statements to Weimann created
the impression his union activities were under surveillance as alleged in Complaint paragraph
5(e)(1).
(19) Complaint Paragraph 5(e)(2) the alleged December 18, 2008 Carrillo isolation of
employees who supported the Union.
No evidence was adduced to support this Complaint allegation and it will be dismissed.
(20) Complaint Paragraph 5(f)(1) the alleged January 5, 200956 Hartranft overly-broad
rule prohibiting employees from speaking with Union agents during non-working hours.
(21)Complaint Paragraph 5(f)(2) the alleged January 5, 2009 Hartranft threat that
employees must tell Respondent if Union agents are at the jobsite.
There was no evidence to support this allegation and it will be dismissed.
(22) Complaint Paragraph 5(f)(3) the alleged January 5, 2009 Hartranft threat that
Union agents would be excluded from the jobsite.
.
There was no evidence adduced to support this allegation and it will be dismissed.
(23)Complaint Paragraph 5(f)(4) the alleged January 5, 2009 Hartranft overly-broad
rule prohibiting employees from speaking with Union agents on company time.
(24)Complaint Paragraph 5(f)(5) the alleged January 5, 2009 Hartranft threat to
discharge employees who sign Union cards or speak to Union agents.

55 Since the matter was fully litigated, I will consider the conduct which occurred in late
December 2008 or early January 2009, support the allegations contained in Complaint
paragraph 5(e)(1). Hi-Tech Cable Corp., 318 NLRB 280 (1995).
56 In her brief Counsel for the General Counsel moved to amend the allegations of
Complaint paragraphs 5(f)(1) through 5(f)(8) to reflect that the events took place on December
15, 2008, as reflected in the record. Since the matter was fully litigated, and there being no
opposition, I will grant the motion. Hi-Tech Cable Corp., supra.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
22
There was no evidence to establish this allegation and it will be dismissed.
(25)Complaint Paragraph 5(f)(6) the alleged January 5, 2009
Hartranft threat to replace employees who talk to Union agents on company time.
There was no evidence produced to support this allegation and it will be dismissed.
(26)Complaint Paragraph 5(f)(7) the alleged January 5, 2009 Hartranft threat to close
the plant.
(27)Complaint Paragraph 5(f)(8) the alleged January 5, 2009 Hartranft threat of
reprisals for employees who talk to Union agents on company time.
As previously found above on December 10, 2008, Hartranft unlawfully told
Respondent’s sheet metal employees that if Montroy came on a jobsite the employees were not
to speak to him and were to notify Hartranft immediately. Hartranft said the employees were not
allowed to speak to Montroy about the Union on company time and that if employees were
caught speaking to him they would probably be fired.
Later on December 15, 2008, Hartranft again told about four of Respondent’s sheet
metal employees that if Montroy showed up at the jobsite they could not speak to him. Hartranft
said that the employees could only talk to Montroy or about the Union was on their 30 minute
lunch break and not on their 15 minute breaks as that was company time. Hartranft also said
that Respondent’s Sheet Metal Superintendent Shawn Bowser said Respondent would close
the doors if they went Union.
Counsel for the General Counsel argues that Hartranft’s above statements somehow
restated his December 10, 2008 threats to employees that if employees were caught speaking
to Montroy they would probably be fired. This contention is not supported by the evidence. This
is simply not what Hartranft said and no reasonable interpretation of his December 15
statements could encompass a threat of reprisals for employees who spoke with Montroy.
Complaint Paragraph 5(f)(8) will be dismissed.
On the other hand Hartranft’s statement that Sheet Metal Superintendent Bowser said
Respondent would close the doors if they went Union is clearly a threat designed to interfere
with employees’ free exercise of their section 7 rights and violated section 8(a)(1) of the Act as
alleged in Complaint paragraph 5(f)(7). Mid-South Drywall Co., Inc., 339 NLRB 480 (2003).
Further, Hartranft’s limitation on employees speaking with Montroy at the jobsite or
discussing the Union with fellow employees to their 30 minute lunch break but not on their 15
minute breaks was an overly broad limitation on employees’ rights to engage in union activity as
it unlawfully restricted employees’ use of break time as alleged in Complaint paragraphs 5(f)(1)
and 5(f)(4). St. George Warehouse, Inc., 331 NLRB 454, 462 (2000).
(28) Complaint Paragraph 5(g)(1) the alleged January 8, 200957 Carrillo interrogation.

57 It appears from the record that the events alleged in Complaint allegations 5(g)(1) through
(4) occurred sometime in December 2008, a short time after Duffy was hired on December 15,
2008. Since the matter was fully litigated, I will consider the conduct which occurred in
December 2008, supports the allegations contained in Complaint paragraphs 5(g)(1) through
(3). Hi-Tech Cable Corp., supra.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
23
(29) Complaint Paragraph 5(g)(2) the alleged January 8, 2009 Carrillo informing
employees it was futile to support the Union.
(30) Complaint Paragraph 5(g)(3) the alleged January 8, 2009 Carrillo threat to
employees.
(31) Complaint Paragraph 5(g)(4) the alleged January 8, 2009 Carrillo threat to
discharge employees who talk about the Union.
There was no evidence adduced to support this complaint allegation and it will be
dismissed.
Counsel for the General Counsel contends that Carrillo’s statements constitute unlawful
interrogation, a statement that it is futile to support the Union, a threat of unspecified reprisal
and a threat to discharge Union supporters. Respondent contends Carrillo is not a supervisor
and thus his statements cannot be attributed to Respondent.
Clearly Carrillo’s December 2008 statements violate Section 8(a)(1) of the Act. They
occur in the context of multiple prior unlawful threats by Carrillo and Hartranft. The statement
that Respondent would close before they became a Union shop is the ultimate threat designed
to chill employees in the exercise of their Section 7 rights to engage in union activity. Carrillo’s
suggestion that employees quit if they want to go Union is a further threat to employees who
wished to engage in protected activity. Finally Carrillo essentially told employees to stop
engaging in union activity because Respondent would never go union. This statement of the
futility of engaging in union activity was directed to further discourage employees from engaging
in Section 7 activity. All of this conduct violated Section 8(a)(1) of the Act as alleged in
Complaint paragraphs 5(g)(1), (2) and (3).
(32) Complaint Paragraph 5(h)(1) the alleged January 20, 2009 Patterson, DeWitt and
Bowser interrogation of applicants.
(33) Complaint Paragraph 5(h)(2) the alleged January 20, 2009 Patterson, DeWitt and
Bowser direction of employees to call 911.
Counsel for the General Counsel contends that Respondent violated Section 8(a)(1) of
the Act in the Bowser interrogations of Latham and Jamison and by DeWitt, in the presence of
applicants, telling Patterson to call 911.
Respondent counters that Bowser’s comment to Latham was merely Bowser’s
recognition of Latham who he had met in the past. Respondent contends that DeWitt’s direction
to call 911 was not directed at Union applicants but rather to Patterson’s fear of being
threatened.
Bowser questioned both Union Business Agent Latham and applicant Jameson. Bowser
approached Latham, one of the two applicants still inside the office filling out applications, and
asked if he was Don. Latham replied he was. Bowser walked away for a few minutes and later
returned and asked Latham, “Hey, you’re with the Union, right?” and Latham responded that he
was. Bowser also asked Jameson, the other applicant in the office, “if I was part of the Local
359.” Jameson replied that he was not.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
24
Applying the Rossmore House test, it appears that Bowser’s questions to both Latham
and Jameson were coercive. Bowser is one of Respondent’s high management officials,
responsible for hiring Respondent’s field sheet metal employees. Bowser’s questions to Latham
and Jameson occurred after they had observed DeWitt’s direction to call the police in response
to the Union applicants’ attempts to fill out applications and after they saw Respondent’s small
front office filled with Respondent’s male employees in response to the Union applicant’s
attempts to be hired. Nothing in Bowser’s statements to Latham or Jameson suggests he was
simply stating that he knew Latham or Jameson. Rather, the nature of the information sought
could have been used to deny these individuals jobs on the basis of their Union affiliations.
These statements were part of a larger history of Respondent’s threats and interrogations of its
employees. I find Bowser’s interrogation of Latham and Jameson violated Section 8(a)(1) of
the Act as alleged in Complaint paragraph 5(h)(1).
Whether DeWitt’s 911 comments were motivated by his concern for Patterson, is
irrelevant. A violation of Section 8(a)(1) of the Act is based an objective standard. The issue is
whether the two job applicants who were in Respondent’s office or the five other applicants as
potential employees would feel threatened, coerced or restrained in the exercise of their Section
7 rights. A job applicant for employment is an employee under Section 2(3) of the Act. Phelps
Dodge Corp. v. NLRB, 313 U.S. 177 (1951). In this case, DeWitt went into the office and in the
presence of both job applicants Latham and Jameson told Patterson, “If this happens again you
can just call 911 and tell them that you feel threatened and that they would come and take the
guys away for a couple of hours. Take them to jail.’‘ Statements that threaten union job
applicants with arrest unlawfully discourage them from engaging in protected and concerted
activities in violation of Section 8(a)(1). I find as alleged in Complaint paragraph 5(h)(2),
DeWitt’s statement violated Section 8(a)(1) of the Act. Labor Ready, Inc., 327 NLRB 1055,
1057-1058. (1999).
(34) Complaint Paragraph 5(i)(1) the alleged March 6, 2009 McNally, Longley and
Hartranft asking employees to disclose the union activities of other employees.
(35) Complaint Paragraph 5(i)(2) the alleged March 6, 2009 McNally, Longley and
Hartranft overly-broad rule prohibiting employees from soliciting other employees for the
Union while on the clock.
(36) Complaint Paragraph 5(i)(3) the alleged March 6, 2009 McNally, Longley and
Hartranft threat to discharge employees who solicited for the Union.
(37) Complaint Paragraph 5(i)(4) the alleged March 6, 2009 McNally, Longley and
Hartranft rule permitting only certain union agents on the jobsite.
No evidence was adduced to support this allegation and it will be dismissed.
Counsel for the General Counsel argues that by reading McNally’s letter, a letter that
admonishes Plumbers Union members not to support any organizing effort in any way while “on
the clock,” and reading it to employees to whom the letter was not addressed, Respondent
promulgated an overly-broad and discriminatory rule against talking about the Union while on-
the-clock. Further it is argued that Longley threatened sheet metal employees with reprisals
and other discipline if they showed support for the Union organizing campaign or if they had any
discussions between plumbers and sheet metal employees about the Union.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
25
Respondent takes the position that in reading the letter Longley made no threat but was
simply enforcing Respondent’s no-solicitation policy. Moreover there was no reference in the
letter to termination of sheet metal employees.
A rule which prohibits solicitation for union activities while on the clock violates Section
8(a)(1) of the Act. St. George Warehouse, Inc., 331 NLRB 454, 462 (2000), enfd. 261 F. 3d
493 (3d Cir. 2001). Further, clarification of an ambiguous rule or a narrowed interpretation of an
overly-broad rule must be communicated effectively to the employer’s workers to eliminate the
impact of a facially invalid rule. Laidlaw Transit, Inc., 315 NLRB 79, 83 (1994). “Any remaining
ambiguities concerning the rule will be resolved against the employer, the promulgator of the
rule.” Teletech Holdings, 333 NLRB 402, 403 (2001), citing Norris/ O’Bannon, 307 NLRB 1236,
1245 (1992). While the letter Longley read was written by Plumbers Union Local 469 Business
Manager Phil McNally and addressed to Local 469 members, the sheet metal employees
Longely addressed would have assumed it was directed to them. After Longley read the letter
to Respondent’s sheet metal employees, his explanation to them that they were not allowed to
discuss organizing during company hours but only on an employees’ lunch hour or on an
employees’ time or after hours was ineffective to cure the overly broad rule prohibiting union
solicitation on the clock. Longley again misstated permissible limitations on solicitation by telling
employees they could discuss the union during company time but only on lunch breaks or on
employees’ time or after hours. Respondent, through Longley, violated Section 8(a)(1) of the
Act in promulgating an overly broad no solicitation rule as alleged in Complaint paragraph
5(i)(2).
Longleys’ statement that if a plumber walked up and talked to them about the Union,
they were to report it to Longley or Hartranft is a direction to report the union activities of other
employees to Respondent. Longley’s further statement that there would be disciplinary action
taken if the Union was discussed on company time is a threat to enforce the above overly broad
no solicitation rule. Both statements violate Section 8(a)(1) of the Act as alleged in Complaint
paragraphs 5(i)(1) and 5(i)(3). Bloomington-Normal Seating Co. 339 NLRB 191, 193 (2003).
Respondent’s contention that no sheet metal employees were threatened with discipline
for violating the no solicitation rule is not supported by the record. While the letter Longley read
was addressed to plumbers, there were no plumbers in attendance when the letter was read to
the sheet metal employees. Clearly the effect of reading the letter was to tell sheet metal
employees they could not organize while on the clock or they would face discipline.
(38) Complaint Paragraph 5(j) the alleged March 23, 200958 Van Kuren, Dempsey and
Bowser discriminatory rule prohibiting solicitation and distribution of union materials and
paraphernalia during working hours.
(39) Complaint Paragraph 5(k) the alleged March 23, 2009 Dempsey enforcement of
the discriminatory rule prohibiting solicitation and distribution of union materials and
paraphernalia during working hours.

58 It appears from the record that the events alleged in Complaint allegations 5(j)and (5)(k)
occurred on March 27, 2009. Since the matter was fully litigated, I will consider the conduct
which occurred in on March 27, 2009, supports the allegations contained in Complaint
paragraph 5(j)and (5)(k). Hi-Tech Cable Corp., supra.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
26
Counsel for the General Counsel contends that Bowser’s order to Jones that he was not
allowed to organize, solicit for or speak about the Union during company time, only on break
time and after hours, violated the Act by promulgating and discriminatorily enforcing an overly
broad no solicitation rule and by issuing the rule in response to employees’ union activities.
On the other hand Respondent contends that it was enforcing its valid no-solicitation no-
distribution rule.59
I find that Bowser’s March 27, 2009, edict to Jones that he was not allowed to organize,
solicit for or speak about the Union during company time, only on break time and after hours
was an overly broad no solicitation rule in that it prohibited Jones from engaging in protected
activity on his lunch time. While Respondent’s no-solicitation no-distribution rule may have
been valid on its face, Bowser’s promulgation and enforcement of Respondent’s no solicitation
rule was too broad. St. George Warehouse, Inc., 331 NLRB 454, 462 (2000), enfd. 261 F. 3d
493 (3d Cir. 2001). This rule violated Section 8(a)(1) of the Act as alleged in Complaint
paragraph 5(j).
Later on March 27, 2009, when Bowser issued a written warning to Jones for violating
Respondent’s no solicitation no distribution rule by handing out a Union t-shirt, Counsel for the
General Counsel contends that Respondent violated Section 8(a)(1) of the Act.
The Board and the Courts have drawn a distinction between employer limits on union
solicitation and distribution of protected materials. Thus an employer may limit distribution of
union materials at all times and in all places in a non discriminatory manner. Stoddard-Quirk
Mfg . Co., 138 NLRB 615 (1962).
Here the record reflects that Respondent’s foreman has brought flyers for charity
motorcycle runs for his motorcycle club and posted the flyers on the Conex at the MIM jobsite.
These flyers solicited employees to come to a picnic and give money to a charity. Longley
would ask employees to bring food in for a food drive while employees were in safety meetings.
Finally, Respondent also has allowed Union stickers from the Plumber’s Union to be put on
gang boxes.
It appears that Respondent has not evenly enforced its no-distribution rule with respect
to unions. It has permitted the distribution of Plumber’s Union stickers while disciplining Jones
for distributing a Sheetmetal Workers’ t-shirt. Even under a Register Guard analysis disciplining
Jones for distributing a Union t-shirt was a discriminatory enforcement of its no distribution rule
in violation Section 8(a)(1) of the Act as alleged in Complaint paragraph 5(k).
2. The 8(a)(3) and (4) Allegations
Complaint paragraphs 6(a) through 6(m) allege Respondent’s actions that violated
Sections 8(a)(3) and (4) of the Act.
a. The Law
Section 8(a)(3) of the Act prohibits employers from discriminating in regard to an
employee’s, “tenure of employment . . . to encourage or discourage membership in any labor
organization.”60

59 Respondent’s Exh. 11, page 15
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
27
In 8(a)(3) cases the employer’s motivation is frequently in issue, therefore the Board
applies a causation test to resolve such questions. Wright Line, 251 NLRB 1083, 1088 (1980).
The Wright Line test requires the General Counsel to make a prima facie showing sufficient to
support an inference that the employee’s protected conduct motivated the employer’s adverse
action. “The critical elements of discrimination cases are protected activity known to the
employer and hostility toward the protected activity.” Western Plant, 322 NLRB 183, 194
(1996). Although not conclusive, timing is usually a significant element in finding a prima facie
case of discrimination. Id. at 194. In dual motivation cases, once General Counsel has
established a prima facie case the burden shifts to Respondent to show that it would have
disciplined the employee even in the absence of protected activity.
Section 8(a)(4) of the Act makes it unlawful “to discharge or otherwise to discriminate
against an employee because he has filed charges or given testimony under this Act.” The
Board also applies a Wright Line test to Section 8(a)(4) discrimination. Verizon, 350 NLRB 542
(2007).
b. The Complaint Allegations
(1) Complaint Paragraph 6(a) the alleged December 12, 2008, delay in hiring
applicants.
(2) Complaint Paragraph 6(b) the alleged January 8, 200961, discipline of Weimann.
(3) Complaint Paragraph 6(c) the alleged January 8, 2009, discharge of Weimann.
Weimann was employed by Respondent in its fabrication shop as a sheetmetal worker
from December 12, 2008 until January 12, 2009. Weimann replied to a newspaper ad
Respondent had placed for sheetmetal workers. Weimann was interviewed by both Carrillo and
shop foreman Trevor Davies. Carrillo asked the questions and asked Weimann if he was in the
Union. Weimann said he had been a member for five years. A week later Carrillo offered
Weimann a job in the shop.
Counsel for the General Counsel takes the position that in its one week delay in hiring
Weimann, in issuing Weimann a written warning and in terminating Weimann Respondent
violated Section 8(a)(3) of the Act.
Respondent contends that Weimann quit voluntarily and that there is no evidence to
support Complaint paragraph 6(a).
Respondent’s hiring of Weimann flies in the face of General Counsel’s allegation that the
delay in the week between Weimann’s interview and his hire was discriminatory, particularly in
view of Respondent’s knowledge prior to his hire that Weimann had been a Union member for
five years. I find no evidence to support an inference that the week delay was discriminatory as
alleged in Complaint paragraph 6(a). I will dismiss this allegation.
_________________________
60 29 U.S.C. Section 158(a)(3).
61 At the hearing Counsel for the General Counsel moved to amend Complaint paragraphs
6(b) and 6(c) to January 12, 2009. The motion was granted.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
28
On December 13, 2008, after Weimann’s job interview, Respondent discovered that the
Union had reinstituted its organizing campaign when Montroy went to Respondent’s shop to
meet employees. After Weimann was hired on December 17, 2008, Weimann engaged in union
activities by speaking with shop employees about the Union in the work area, including leadman
Dennis Kupiec and Shop Manager Davies’ son Jeremy and by signing an authorization card in
December 2008. Respondent was aware of Weimann’s union activities as Carrillo
acknowledged when he came up to Weimann and asked if he was having another union
meeting each time he saw Weimann speaking with another shop employee.
Respondent has demonstrated its hostility to its employees’ union activities as detailed
by the numerous threats discussed above. On January 12, 2009, Carrillo clearly demonstrated
his hostility toward Weimann by saying: “If that’s your attitude I don’t’ need people in here like
you stirring up trouble.” Statements identifying a union supporter as someone who has been
“stirring up trouble” are hallmarks identifying an individual as a union supporter.
Based upon the above factors, Counsel for the General Counsel has established a prima
facie case that Weimann’s termination violated Section 8(a)(3) of the Act. Western Plant, 322
NLRB 183, 194 (1996). The burden now shifts to Respondent to show it would have fired
Weimann even in the absence of his union activity. Wright Line, 251 NLRB 1083, 1088 (1980).
Respondent contends in the alternative that Weimann quit his job or was fired because
of his poor work performance. It is curious to note that in Weimann’s written termination notice
no mention is made that he quit rather only poor performance is documented. It is clear from
Carrillo’s statements that he fired Weimann. In telling Weimann “I don’t need people like your
kind in here stirring up trouble;” and “You need to pack your shit and get the fuck out right now;”
Carrillo left no doubt that Weimann did not quit but was fired. By not firing Weimann’s co-worker
Wilson who worked on the same piece of improperly fabricated sheetmetal, Respondent
demonstrated that its motivation in firing Weimann was not poor work performance but
Weimann’s “stirring up trouble.” I find that in warning and firing Weimann Respondent violated
Section 8(a)(3) of the Act as alleged in Complaint paragraphs 6(b) and (6)(c).
(4) Complaint Paragraph 6(d) the alleged January 12, 2009, discharge of Cardenas.
At the hearing Counsel for the General Counsel moved to amend the Complaint to
delete this allegation. The motion was granted.
(5) Complaint Paragraph 6(e) the alleged January 20, 2009, imposition of more
onerous working conditions by restricting break times and relocating break areas.
(6) Complaint Paragraph 6(f) the alleged January 20, 2009, imposition of more
onerous working conditions by increasing the price of items in vending machines.
Counsel for the General Counsel contends that Respondent restricted break access to
limit employees’ ability to communicate with the Union agents on their break time and increased
vending prices in violation of Section 8(a)(3) of the Act.
Respondent counters that it locked gates for security reasons as a result of recent thefts
and to ensure that break areas were equal and to ensure that each department took breaks in
their own area. Respondent also contends that there was no difference in prices of the vending
machines and that if there was it was corrected within a few days.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
29
While Respondent restricted its shop employees’ use of the front office break area and
put its front parking area off limits to breaks after the Union began its organizing campaign in
November 2008, its security issues have existed at its facility since at least 2005. The timing of
the access restrictions coincides with various Union organizing activities including the attempt to
file applications by Union members and organizers on January 20, 2009 and the Union drive by
with pro-Union signs later in January 2009.
At the time Respondent began limiting shop employees access it was aware that its
shop employees were engaged in union activities and it had demonstrated its hostility toward
those activities.
Counsel for the General Counsel has established a prima facie case that Respondent’s
segregation of its shop employees by limiting their access to the public and hence to the Union
violated Section 8(a)(3) of the Act.
Respondent contends that its limitation of shop employees’ access to the public was not
motivated by anti-union animus but was a response to secure its facilities from unsavory
individuals who had entered its facility. I find that this defense is a pretext. The record reflects
that for over three years Respondent was aware it had a security problem. It was not until the
Union attempted to organize Respondent’s employees by making direct appeals to them at the
workplace that Respondent decided to solve its “security” problem which conveniently cut off the
Union’s direct appeals to those employees. The timing of the implementation of Respondent’s
security measures creates the inference that they were designed to limit its employees’ union
activities and violated Section 8(a)(3) of the Act as alleged in Complaint paragraph 6(e).
(7) Complaint Paragraph 6(g) the alleged January 20, 2009, imposition of more
onerous working conditions by enforcing the overly broad rule prohibiting employees
from speaking with Union agents on company time.
Complaint paragraph 6(g) alleges that on January 20, 2009 Respondent enforced the
overly broad rule prohibiting employees from speaking with Union agents on company time
promulgated by Hartranft on December 15, 2008. No evidence was adduced to support this
allegation and it will be dismissed.
(8) Complaint Paragraph 6(h)(1) the alleged January 20, 2009, denial of access to
Respondent’s application process to Union supporters.
(9) Complaint Paragraph 6(h)(2) the alleged January 20, 2009, failure to consider for
hire of applicants Montroy, Jamison, Latham, Molina, Rico, Osteros and Lebron.
Counsel for the General Counsel, citing FES, A Division of Thermo Power 331 NLRB 9
(2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.2d 83 (3rd Cir. 2002) and Toering
Electric Co., 351 NLRB 225 (2007), contends it has shown that Respondent violated Section
8(a)(3) of the Act in denying access to its application process and by failing to consider and
failing to hire the seven Union job applicants.
Respondent contends that the applicants were not genuinely interested in obtaining jobs
that the applicants were given an opportunity to fill out applications, that there were other
qualified applicants already on file, and that these applicants were over qualified which would
have caused an overrun on labor costs.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
30
In FES, A Division of Thermo Power, 331 NLRB 9 (2000) the Board promulgated a test
to establish a discriminatory refusal to hire. General Counsel must show:
(1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged
unlawful conduct; (2) that the applicants had experience or training relevant to the announced or
generally known requirements of the positions for hire, or in the alternative, that the employer
has not adhered uniformly to such requirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus
contributed to the decision not to hire the applicants. Once this is established, the burden will
shift to the respondent to show that it would not have hired the applicants even in the absence
of their union activity or affiliation. FES. at 12.
The employer has the burden of proof to show that the applicant did not meet its criteria
for the position, was unqualified for the position or was not as qualified as others who were
hired. FES at 12.
In refusal to consider for hire cases the Board in FES established the following test:
To establish a discriminatory refusal to consider, pursuant to Wright Line, supra, the
General Counsel bears the burden of showing the following at the hearing on the merits: (1) that
the respondent excluded applicants from a hiring process; and (2) that antiunion animus
contributed to the decision not to consider the applicants for employment. Once this is
established, the burden will shift to the respondent to show that it would not have considered the
applicants even in the absence of their union activity or affiliation. FES, at 15.
In Quality Mechanical Insulation, Inc., 340 NLRB No. 91 (2003) and Brandt Construction
Co., 336 NLRB 733 (2001) hiring policies similar to Respondent’s were found to be lawful.
In Toering Electric Company, 351 NLRB 225, 225 (2007) the Board majority of
Chairman Battista and Members Schaumber and Kirsanow, with Members Liebman an Walsh
dissenting, limited the statutory protections developed in FES to job applicants, “ . . . genuinely
interested in seeking to establish an employment relationship with the employer.” In addition
the Board imposed on the General Counsel the burden of proving that an alleged discriminatee
met its definition of a statutory employee.
In Toering at 233 the majority explained that its requirement to meet the definition of an
employee applicant entitled to the Act’s protection consists of two parts:
(1) there was an application for employment, and (2) the application reflected a genuine
interest in becoming employed by the employer. As to the first component, the General
Counsel must introduce evidence that the individual applied for employment with the
employer or that someone authorized by that individual did so, on his or her behalf. In
the latter instance, agency must be shown. As to the second component (genuine
interest in becoming employed), the employer must put at issue the genuineness of the
applicant’s interest through evidence that creates a reasonable question as to the
applicant’s actual interest in going to work for the employer. . . . Consequently, once the
General Counsel has shown that the alleged discriminatee applied for employment, the
employer may contest the genuineness of the application through evidence including,
but not limited to the following: evidence that the individual refused similar employment
with the respondent employer in the recent past; incorporated belligerent or offensive
comments on his or her application; engaged in disruptive, insulting, or antagonistic
behavior during the application process; or engaged in other conduct inconsistent with a
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
31
genuine interest in employment. Similarly, evidence that the application is stale or
incomplete may, depending upon the circumstances, indicate that the applicant does not
genuinely seek to establish an employment relationship with the employer.
Initially an analysis of failure to hire or consider for hire under FES must determine if the
applicants meet the Toering test of statutory employee. The record reflects that all seven of the
applicants filled out job applications on January 20, 2009. The record also reflects that they
were all given permission from the Union to apply for work and work if hired by Respondent.
The record also establishes that all applicants would work for Respondent if offered
employment. The Union representatives said that they would have worked for Respondent in
order to try organizing Respondent’s employees, a legitimate reason for seeking employment
with Respondent. General Counsel has satisfied its burden under Toering of establishing the
applicants genuinely sought an employment relationship with Respondent.
However, only five of the applicants submitted their applicants to Respondent. Union
representatives Montroy and Molina did not fill out applications because they felt intimidated by
the appearance of Respondent’s male mangers in the front office. I find this explanation
incredible. Montroy and Molina are experienced Union agents who have been involved in
organizing and other encounters with various employers. Respondent’s managers in the front
office made no threats to Molina, Montroy or the other applicants that would have created a
reasonable impression that they were in any danger. Accordingly, I find that the failure of
Montroy and Molina to submit their applications to Respondent was not justified. Thus, neither
Montroy nor Molina satisfied the Toering requirement that an application be filed.
As to the five applicants who submitted applications, Respondent has failed to contest
the genuineness of the applications. None of the applicants had refused work with Respondent
in the recent past. None of the applicants displayed belligerent or offensive comments in their
applications. Contrary to Respondent’s contention, the record, and particularly the tape
recording of the entire application incident, disclosed that none of the applicants engaged in
disruptive, insulting, or antagonistic behavior during the application process. However,
Respondent contends that two applicants failed to truthfully or completely fill out the applications
and one applicant was a felon.
I find this rationale to be pretext since Respondent accepted applications from and hired
sheet metal employees after January 20, 2009 who failed to complete their applications and
who were convicted of felonies. I find that applicants Jamison, Latham, Rico, Osteros and
Lebron were applicant employees entitled to the protections of the Act under Toering.
As to the failure to hire or consider for hire, it is clear that Respondent hired sheet metal
employees after January 20, 2009. Thus, after January 20, 2009 Respondent hired 28 sheet
metal employees in addition to temporary labor.
As found above, each of the seven applicants were well qualified to work for Respondent
as sheet metal workers.
Finally the record is replete with Respondent’s anti-union animus both before and after
January 20, 2009.
General Counsel has met the FES test for discriminatory refusal to hire and the burden
shifts to Respondent to show that it would not have hired the applicants even in the absence of
their union activity or affiliation.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
32
Respondent contends that it had a sufficient list of qualified applicants for sheet metal
jobs already on file, and that the seven Union applicants were over qualified which would have
caused an overrun on labor costs.
Nothing in the applications of the employees hired by Respondent after January 20, 2009,
reflects that they were more qualified than the five Union applicants. As the Board stated in
FES at page 12:
If the respondent asserts that the applicants were not qualified for the positions it was filling, it is
the respondent’s burden to show, at the hearing on the merits, that they did not possess the
specific qualifications the position required or that others (who were hired) had superior
qualifications, and that it would not have hired them for that reason even in the absence of their
union support or activity.
Here Respondent failed to establish that the five applicants lacked qualifications for the
positions it filled after January 20, 2009. Moreover, Respondent failed to prove that those it
hired had superior qualifications to the Union applicants. Respondent’s argument that the Union
applicants were overqualified and would cause a cost overrun in its labor budget fails since
Respondent did not offer any evidence as to how its labor costs were allocated nor did it explain
why none of the five was offered employment at a wage within Respondent’s budget.
I find that Respondent violated Section 8(a)(3) of the Act in failing to hire Jamison, Latham,
Rico, Osteros and Lebron as alleged in Complaint paragraph 6(h)(2).
However, I find no merit in the allegation that Respondent denied the seven Union applicants
access to its hiring process. While Respondent’s Receptionist Ruth Patterson initially told the
applicants that Respondent was not hiring, and denied them access to the interior of
Respondent’s facility, Union Representative Montroy’s persistence succeeded in persuading
Respondent to allow the Union applicants to fill out and submit job applications to Respondent
on January 20, 2009. I will dismiss Complaint allegation 6(h)(1).
(10) Complaint Paragraph 6(i) the alleged March 16, 2009, use of
temporary employees rather than Retzlaff, Brimie, Chavez, Duffy
and Nielson.laid off employees.
(11) Complaint Paragraph 6(j) the alleged March 16, 2009, discharge of
Retzlaff, Brimie, Chavez, Duffy and Nielson.
Counsel for the General Counsel takes the position that Respondent’s use of temporary
employees rather than the laid off shop employees violated Section 8(a)(3) of the Act and that
its discharge of the shop employees violated Sections 8(a)(3) and (4) of the Act.
On the other hand Respondent contends it had no knowledge of its employees’ union
activities, it was not its normal practice to transfer employees from the shop to the field, its
practice was to use contract labor for short term jobsite needs, the laid off shop employees were
not qualified to perform field work, there was no longer a need for as much fabrication work, and
the need for field employees existed before the shop employees were available.
The record reflects that shop employees Retzlaff, Brimie, Chavez, Duffy and Nielson all
engaged in Union activities. However, it has been established that Respondent was aware of
only Retzlaff’s union activities. It can be inferred that Respondent was aware of Brimie’s union
activities from his conspicuous display of Union insignia on his truck and tool box. While there
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
33
is no evidence that Respondent specifically knew that Chavez, Duffy or Nielsen engaged in
union activity, it is clear that Respondent was aware that its shop employees were engaged in
union activities. As a result of his meeting with Montroy at the Union hall on November 26,
2008, Carrillo knew the Union was trying to organize his shop employees. Carrillo’s threats that
the employees should not expect to go Union, that Respondent would never go Union, that he
knew there were cards that had been floating around, that anybody caught signing the card
would be gone, that Respondent would close the doors on the company before they went Union
and the employees would all be out of work clearly establishes that Respondent was aware of
its shop employees’ union activities. In addition Carrillo’s statements support a finding that
Respondent harbored animosity toward its shop employees’ union activities. I find that General
Counsel has established a prima facie case that Respondent discriminatorily discharged its five
shop employees in retaliation for their union activity.
Respondent’s proffered explanation that it made the decision to hire temporary
employees before it fired its shop employees on March 16, 2009, is belied by the evidence that
it began using CLP Resources for temporary sheet metal workers on March 22, 2009. The fact
that only three days elapsed between Respondents use of Allied Forces for temporary sheet
metal workers at the BIMC jobsite on March 13, 2009 and the March 16, 2009 discharge of its
shop employees renders suspect Respondents’ contention that it did not know its shop
employees would be available for field work. Respondent’s contention that it did not transfer
shop employees to the field is contrary to the evidence that in February 2009 Carrillo sent
Brimie to work in the field as a sheet metal worker. Respondent’s position that the shop
employees were not qualified to perform field installation work is also unsupported as Retzlaff,
Brimie, Chavez, and Duffy all had field experience installing sheet metal. Moreover,
Respondent had adequate fabrication work for its shop employees well after March 16, 2009.
On March 11, 2009, the Union filed a petition for an election with Region 28 seeking to
represent a unit of Respondent’s sheet metal employees and on March 12, 2009, the Region
faxed Respondent copies of the petition. There is no coincidence that the five sheet metal
employees were fired four days after Respondent learned that the Union had filed a petition for
election among its sheet metal employees. Respondent’s hostility toward its employees
protected activities by March 12, 2009 is well established. Finally Respondent’s rationale for
firing the shop employees had been discredited. Accordingly, an inference may be drawn that
the shop employees were discharged in part in retaliation due to the filing of the representation
petition as alleged in Complaint paragraph 6(j).
I conclude that Respondent has failed to establish that it would have discharged Retzlaff,
Brimie, Chavez, Nielsen and Duffy in the absence of their union activities in violation of Section
8(a)(3) and (4) of the Act as alleged in Complaint paragraph 6(j).
I also find Respondent subcontracted its work to temporary sheet metal installers rather
than using extant shop employees in retaliation for the shop employees union activities in
violation of Section 8(a)(3) of the Act as alleged in Complaint paragraph 6(i).
(12) Complaint Paragraph 6(k) the alleged March 27, 2009, discipline of Jones.
Counsel for the General Counsel contends that the discipline issued to Jones for
violating the overly broad no solicitation no distribution rule violated Section 8(a)(3) of the Act.
To the contrary, Respondent argues its discipline of Jones was valid enforcement of its
no solicitation policy.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
34
Having found that that Bowser’s March 27, 2009, edict to Jones that he was not allowed
to organize, solicit for or speak about the Union during company time, only on break time and
after hours was an overly broad no solicitation rule that violated Section 8(a)(1) of the Act it
follows that Bowser’s discipline of Jones for violating this rule violated Section 8(a)(3) of the Act
as alleged in Complaint paragraph 6(k) in that Jones was disciplined for engaging in union
activities.
13 Complaint Paragraph 6(l) the alleged March 2009, outsourcing of fabrication work
to Omni.
General Counsel posits that Respondent’s ongoing March 2009 outsourcing of
fabrication work to Omni Duct violated Sections 8(a)(3) and (4) of the Act.
Respondent counters that it decided to subcontract duct work to Omni in October 2008
well before it was aware of any Union activity and that after March 2009 its shop could not meet
the time requirements for fabrication of duct at the MIM.
Respondent’s knowledge of and animus toward its employees’ union activities has been
well documented. While Respondent’s initial decision to subcontract duct fabrication to Omni
Duct may have been justified in December 2008 due to the large volume of ducts needed at its
various jobs, by March 2009, Respondent could have relied on its own fabrication shop to
produce sufficient ductwork to fulfill its worksite needs. Further, the record establishes that
continued use of Omni created up to a five day delay in production of duct that would not have
occurred if Respondent’s fabrication shop made the ductwork. Respondent’s rationale for
continuing to use Omni is not supported by the evidence. Respondent’s continued outsourcing
of ductwork rather than a lack of fabrication work led to the shop layoffs. I find that
Respondent’s continued subcontracting of its duct fabrication work to Omni Duct after March16,
2009 rather than using its own shop employees was done to reduce the available work to its
shop employees in retaliation for their union activities and in retaliation for filing the
representation petition with Region 28 in violation of Section 8(a)(3) and (4) of the Act as
alleged in Complaint paragraph 6(l).
IV. Summary
I have found the following Complaint paragraphs and subparagraphs were sustained
and will be remedied, below. Complaint paragraphs 5(b)(2), (3), (4) and (6); 5(c) (1), (2);
5(d)(1), (2), (3), (4), (5), (7) and (8); 5(e)(1); 5(f)(1), (4) and (7); 5(g)(1), (2) and (3); 5(h)(1) and
(2); 5(i)(1), (2) and (3); 5(j); 5(k); 6(b), (c) and (e); 6(h)(2); 6(j), (i), (k) and (l).
I have found the following Complaint paragraphs and subparagraphs were not sustained
and will be dismissed. Complaint paragraphs: 5(b)(1) and (5); 5(d)(6); 5(e)(2); 5(f)(2), (3), (5),
(6) and (8); 5(g)(4); 5(i)(4); 6(a), (f), (g) and (h)(1).
V. The Objections to Conduct Affecting Results of Election
The Union filed a petition with the Board on March 13, 2009 in case 28-RC-6650.
Pursuant to a Stipulated Election Agreement in case 28-RC-6650 approved by the Regional
Director for Region 28 on March 19, 2009, the parties agreed that the appropriate bargaining
unit consisted of all full time and part time employees, engaged in the fabrication or installation
of HVAC systems, including sheet metal workers, sheet metal tradesperson, sheet metal
apprentices, sheet metal helpers, and sheet metal journeypersons, a the Employer’s facility; and
located at contracted jobsites within the State of Arizona; excluding all jobbers, plumbers,
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
35
pipefitters, carpenters, electricians, maintenance personnel, clerical employees, tool room
employees, cleaning employees, office staff, dispatchers, managers, truck drivers, guards, and
supervisors as defined in the Act.
On April 16, 2009, an election by secret ballot was conducted. The Tally of Ballots
served on the parties at the conclusion of the election showed that of approximately 66 eligible
voters, 8 cast ballots for, and 47 against Petitioner. There were no void ballots and 9
challenged ballots which were insufficient in number to affect the results of the election.
On April 21, 2009, the Petitioner filed 41 timely objections to the election which the Regional
Director consolidated with the instant unfair labor practice charges.
Petitioner’s objections state the following:
1. The Employer acted (sic) through its officers and agents surveyed (sic) employees
engaged in union activities.
2. The Employer acted through its officer and agents interrogated Business Union
Agents about Union activities pertaining to the Employer’s employees.
3. The Employer acted through its officers and agents interrogated employees about
their union sentiments and their union activities.
4. The Employer acted through its officers and agents promulgated a overly broad and
discriminatory rules during the union campaign by:
a) Prohibiting employees from engaging in union activities during nonworking
hours.
b) Prohibiting employees from speaking with Union Agents on the jobsite
property during non-working hours.
5. The Employer acted through its officers and agent threatened to terminate
employees who violated the overly broad and discriminatory rules in paragraph 4(a)
and 4(b).
6. The Employer acted through its officers and agents threatened to terminate
employees who engage in union activities in non-working areas during nonworking
hours.
7. The Employer acted through its officers and agents made veiled threats to
employees; this conduct have been directly attributed to Shawn Bowser, that the
Employer would shut the Employer’s doors if employees voted for the Union.
8. The Employer acted through its officers and agents interrogated applicants about
their membership in the Union.
9. The Employer acted through its officers and agents delayed in hiring qualified
applicants because of their membership affiliation to the Union.
10. The Employer acted through its officers and agents discharged employees because
they have engaged in activities in support of the Union.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
36
11. The Employer acted through its officers and agents created the impression that their
activities on behalf of the Union were under surveillance by the Employer’s
Representatives.
12. The Employer acted through its officers and agents invited employees who support
the Union to quit.
13. The Employer acted through its officers and agents threatened employees who
support the Union with termination.
14. The Employer acted through its officers and agents informed employees that it
would be futile of them to support the Union.
15. The Employer acted through its officers and agents imposed more onerous working
conditions on the employees in retaliation for their union and concerted activities.
16. The Employer isolated those employees who engaged in Union activities away from
the other employees.
17. The Employer through its officers and agents have continuously interrogated
employees about their union activities.
18. The Employer through its officers and agents threaten to discharge employees who
signed Union Authorization cards or spoke with Union Agent.
19. The Employer through its officers and agents threaten employees with discharge; if
they continue to engage in Union Activities.
20. The Employer through its officers and agents enforced the Employer’s overly-broad
discriminatory rules of paragraph 4(a) and paragraph 4(b).
21. The Employer through its officers and agents threaten to terminate employees who
violated the overly-broad and discriminatory rules in paragraph 4(a) and paragraph
4(b).
22. The Employer through its officers and agents informed the employees that the
Employer already had replacements for those employees who engaged in Union
Activities.
23. The Employer through its officers and agents had disparaged the Union.
24. The Employer through its officers and agents discriminatorily applied its discipline
policy when they terminated Nathan Weimann and Michael Cardenas because they
engaged in concerted and Union activities.
25. The Employer through its officers and agents have promulgated an overly broad
and discriminatory rule prohibiting employees from discussing the union in working
areas, while allowing employees to discuss other non-work related matters in
working areas.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
37
26. The Employer through its officers and agents misrepresented and misled who
overtly displaced their union affiliation about the employer’s hiring plans.
27. The Employer through its officers and agents failed to hire applicants who overtly
supported the Union.
28. The Employer through its officers and agents failed to consider for hire, applicants
who overtly disclosed their union affiliations.
29. The Employer through its officers and agents applied the Employer’s application
procedure discriminatorily to applicants who overtly disclosed their union affiliations.
30. The Employer through its officers and agents directed its employees to call 911 and
report a threat the next time applicants who overtly disclosed their union affiliations
asked for applications of employment.
31. The Employer through its officers and agents interrogated applicants for
employment about their union sentiments.
32. The Employer through its officers and agents interfered with, restrained and
coerced its employees in the exercise of its rights guaranteed under the Act by
discharging Mr. Jarrod Rentzlaff, because he engaged in activities in support of a
Labor organization.
33. The Employer through its officers and agents interfered with, restrained and
coerced its employees in the exercise of its rights guaranteed under the Act by
discharging Mr. Charles Duffy, because he engaged in activities in support of a
Labor organization.
34. The Employer through its officers and agents interfered with, restrained and
coerced its employees in the exercise of its rights guaranteed under the Act by
discharging Mr. Paul Brimie, because he engaged in activities in support of a Labor
organization.
35. The Employer through its officers and agents interfered with, restrained and
coerced its employees in the exercise of its rights guaranteed under the Act by
discharging Mr. Pedro Chavez, because he engaged in activities in support of a
Labor organization.
36. The Employer through its officers and agents interfered with, restrained and
coerced its employees in the exercise of its rights guaranteed under the Act by
discharging Mr. Terrance Nielson, because he engaged in activities in support of a
Labor organization.
37. The Employer through its officers and agents provided an inaccurate Excelsior list.
38. The Employer through its officers and agents gave free Company Polo shirts to
encourage its employees to vote against the Union.
39. The Employer through its officers and agents disciplined pro-union employees for
participating in protected union solicitation, while allowing anti-union employees to
engage in the same activities.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
38
40. By all the above conducts as well as other similar conduct the Employer through its
officers and agents engaged in conduct that affected the outcome of the election.
41. The Employer acted through its officers and agents and constructively discharged
Robert Jones because he engaged in union and concerted activities.
Having concluded in the unfair labor practice portion of this case that Respondent,
between the date of the petition on March 13, 2009 and the date of the election on
April 16, 2009, promulgated an overly broad no solicitation/no distribution rule, enforced an
overly broad no solicitation/no distribution rule by issuing an employee discipline, discharged
employees in violation of Section 8(a)(3) and (4) of the Act, hired temporary employees and
continued subcontracting work in violation of Section 8(a)(3) and (4) of the Act, I recommend
that Objections 4, 5, 6, 10, 20, 24, 25, 32-36 and 39 be sustained. The evidence concerning
Objections 1, 7, 8, 11-15, 17-19, 21, 23, and 26-31 occurred outside the critical period and I
recommend that these objections be dismissed. No evidence was submitted or the evidence
was insufficient to sustain Objections 2, 9, 16, 22, 37, 38, 40 and 41 and I recommend that they
be dismissed.
Respondent's acts constitute objectionable conduct which interfered with the free choice
of employees in the election. Such conduct constitutes grounds for setting aside the election.
American Safety Equipment, 234 NLRB 501 (1978); Dayton Tire & Rubber, 234 NLRB 504
(1978). I, therefore, recommend that the election be set aside and the case be remanded to the
Regional Director to conduct a new election.62
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. Respondent has been at all times material an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is, and has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by engaging in the following acts and
conduct:
a. Engaging in surveillance and creating the impression that its employees’ union
activities were under surveillance.
b. Promulgating overly broad no solicitation rules prohibiting employees from
speaking with Union agents or with other employees about the Union during non-working time.

62 Any party may, within fourteen (14) days from the date of issuance of this recommended
Decision, file with the Board in Washington, D.C., an original and eight (8) copies of exceptions
thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a
copy thereof on the other parties and shall file a copy with the Regional Director. If no party files
exceptions thereto, the Board may adopt the recommendations set forth herein.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
39
c. Threatening employees that they must notify Respondent of the Union’s
presence on jobsites.
d. Threatening employees with discharge for violating its overly broad no solicitation
rules.
e. Threatening employees with discharge for supporting the Union.
f. Threatening to close Respondent’s facilities if employees supported the Union.
g. Threatening employees who support the Union by telling them to quit.
h. Telling employees it is futile to support the Union.
i. Directing employees to call 911 if employees who support the Union seek
applications for jobs.
j. Asking employees to disclose the Union activities of other employees.
k. Promulgating and enforcing an overly broad no solicitation/no distribution rule
that prohibits distribution of Union paraphernalia and materials while allowing like distribution for
other unions.
4. Respondents violated Section 8(a)(1) and (3) of the Act by:
a. Disciplining and discharging Nathaniel Weimann for engaging in union and other
protected-concerted activity.
b. Imposing more onerous working conditions by limiting break areas in its
fabrication shop.
c. Failing to consider for hire or to hire Lance Jameson, Don Latham, Mahelio Rico,
James Osteros and Fernando Lebron due to their union and other concerted activity.
d. Discharging Jarrod Retzlaff, Paul Brimie, Pedro Chavez, Charles Duffy and
Terrance Nielsen due to their union activities.
e. Issuing a written warning to Robert Jones.
f. Outsourcing its duct fabrication in order to discourage employees’ union
activities.
g. Hiring temporary employees rather than its shop employees to discourage their
union activities.
5. Respondents violated Section 8(a)(1) and (4) of the Act by:
a. Discharging Jarrod Retzlaff, Paul Brimie, Pedro Chavez, Charles Duffy and
Terrance Nielsen because its employees gave testimony or participated in a Board proceeding.
b. Outsourcing its duct fabrication because its employees gave testimony or
participated in a Board proceeding.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
40
6. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not otherwise violate the Act as alleged in the Complaint
and the remaining complaint allegations will be dismissed.
The Remedy
Having found that the Respondent violated the Act as set forth above, I shall order that it
cease and desist there from and post remedial Board notices addressing the violations found.
As part of the remedy herein Counsel for the General Counsel seeks an order
recommending that the Board adopt a policy that requires interest on monetary awards to be
compounded on a quarterly basis. However, the two member Board has made it clear as
recently as 2008 that it is not prepared at this time to deviate from its current practice of
assessing simple interest. National Fabco Mfg., 352 NLRB 1 at fn. 4 (2008). It would be
presumptive to recommend a change to the Board’s longstanding policy of assessing simple
interest without the full Board’s authority.

The Respondent having discriminatorily discharged employees and refused to hire
employees, it must offer them employment, reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.63
ORDER
The Respondent W.D. Manor Mechanical Contractors, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
a. Engaging in surveillance of employees’ union activities.
b. Promulgating overly broad no solicitation rules prohibiting employees from
speaking with Union agents or with other employees about the Union during non-working time.
c. Threatening employees that they must notify Respondent of the Union’s
presence on jobsites.

63 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
41
d. Threatening employees with discharge for violating its overly broad no solicitation
rules.
e. Threatening employees with discharge for supporting the Union.
f. Threatening to close Respondent’s facilities if employees supported the Union.
g. Threatening employees who support the Union by telling them to quit.
h. Telling employees it is futile to support the Union.
i. Directing employees to call 911 if employees who support the Union seek
applications for jobs.
j. Asking employees to disclose the Union activities of other employees.
k. Promulgating and enforcing an overly broad no solicitation/no distribution rule
prohibiting distribution of Union paraphernalia and materials while allowing like distribution for
other unions.
l. Disciplining and discharging Nathaniel Weimann for engaging in union and other
protected-concerted activity.
m. Imposing more onerous working conditions by limiting break areas in its
fabrication shop.
n. Failing to consider for hire or to hire Lance Jameson, Don Latham, Mahelio Rico,
James Osteros and Fernando Lebron due to their union and other concerted activity.
o. Discharging Jarrod Retzlaff, Paul Brimie, Pedro Chavez, Charles Duffy and
Terrance Nielsen due to their union activities or for giving testimony or participating in a National
Labor Relations Board proceeding.
p. Issuing a written warning to Robert Jones.
q. Outsourcing its duct fabrication in order to discourage employees’ union activities
or for giving testimony or participating in a National Labor Relations Board proceeding.
r. Hiring temporary employees rather than its shop employees to discourage their
union activities.
s. 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 designated to effectuate the policies of the Act:
a. Make Lance Jameson, Don Latham, Mahelio Rico, James Osteros, Fernando
Lebron, Nathaniel Weimann, Jarrod Retzlaff, Paul Brimie, Pedro Chavez, Charles Duffy and
Terrance Nielsen whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of the decision.
JD(SF)–16–10–
5
10
15
20
25
30
35
40
45
50
42
b. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharges of Nathaniel Weimann, Jerrod Retzlaff, Paul Brimie, Pedro Chavez,
Charles Duffy and Terrance Nielsen and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.
c. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discipline of Robert Jones Power dated March 27, 2009, and within 3 days
thereafter notify the employees in writing that this has been done and that the discipline will not
be used against them in any way.
d. Cease giving force and effect to the unlawful no distribution/no solicitation rules
prohibiting employees from speaking with other employees and Union representatives on non
working time and from distributing Union material and paraphernalia.
e. 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 designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and papers, 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.
f. Within 14 days after service by the Region, post at its Phoenix, Arizona facility
copies of the attached notice marked “Appendix.”64 Copies of the notice, on forms provided by
the Regional Director for Region 28, 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. 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 Respondent has
gone out of business or closed any of the facilities involved in these proceedings, the
Respondents shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondents at any time since
December 15, 2008.
g. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply
IT IS FURTHER ORDERED that the Complaint is dismissed insofar as they allege
violations of the Act not specifically found.
Dated, Washington, D.C. May 5, 2010
____________________
John J. McCarrick
Administrative Law Judge

64 If this Order is enforced by a Judgment of the 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)–16–10
Phoenix, Arizona
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
WE WILL NOT do anything that interferes with these rights. More particularly:
WE WILL NOT discharge you because you support or engage in activities on behalf of SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL NO. 359, AFL-CIO-CLC.
WE WILL NOT ask you questions about your Union support or activities or the Union support
and activities of other employees.
WE WILL NOT give you the impression that we are watching your Union activities or the Union
activities of any employee.
WE WILL NOT threaten you for failing to immediately notify us of the Union’s presence on the
jobsite.
WE WILL NOT tell employees they cannot speak to Union representatives on our jobsites
during non-working hours.
WE WILL NOT threaten you with discharge if you violate our rule that employees may not
speak with Union representatives on company time or on jobsites where we are working.
WE WILL NOT threaten you with discharge if you support or vote for the Union.
WE WILL NOT threaten you with unspecified reprisals if you associate with employees that
engage in Union or concerted activities.
WE WILL NOT threaten to close the facility if you support or vote for the Union.
WE WILL NOT invite you to quit your employment because you support or vote for the Union.
WE WILL NOT tell you that it is useless for you to support or vote for the Union.
WE WILL NOT threaten you with unspecified reprisals if you talk to Union agents on company
time.
JD(SF)–16–10
Phoenix, Arizona
WE WILL NOT tell our employees to call 911 and report a threat the next time applicants
wearing Union insignia arrive at our facility.
WE WILL NOT ask you to report to us the Union activities of other employees.
WE WILL NOT issue you written warnings because you solicit for the Union.
WE WILL NOT tell you that you cannot solicit or distribute Union related materials while
allowing solicitation and distribution of other materials during working time.
WE WILL NOT impose more onerous working conditions by restricting break time activities or
relocating break time locations, or increasing the prices on vending machine items for sale for
sheet metal employees because of their support for the Union.
WE WILL NOT impose more onerous working conditions on employees to enforce our oral rule
forbidding employees from talking to Union representatives on company time or on jobsites
where the company is working.
WE WILL NOT refuse to hire, or refuse to consider for hire, applicants because of their support
for or affiliation with the Union.
WE WILL NOT hire temporary employees instead of recalling laid-off sheet metal employees.
WE WILL NOT discharge you because of your support for or affiliation with the Union.
WE WILL NOT send fabrication work to other sheet metal shops in order to reduce the
workload and cause the terminations of our sheet metal shop employees.
WE WILL NOT in any similar way frustrate your exercise of any of the rights stated above.
WE WILL immediately rescind and give no effect to the following oral and written policies and
rules which would tend to interfere with your rights to engage in Union or other concerted
activities:
Employees may not speak with Union agents on the jobsite property during non-working
hours;
Employees may not speak with Union representatives on company time.
Employees may not solicit for the Union while on the clock;
Employees may not solicit for the Union or distribute Union related materials and
paraphernalia during working time.
WE WILL immediately offer NATHANIAL WEIMANN (WEIMANN) reinstatement to his former
position, and if that job no longer exists, to a substantially equivalent position, without any loss
of seniority or any other privileges, and WE WILL immediately make WEIMANN whole with
interest for the wages and benefits he lost because we discharged him.
JD(SF)–16–10
Phoenix, Arizona
WE WILL within 14 days, remove from our files, any and all records of our January 8, 2009,
discharge of WEIMANN, and WE WILL within 3 days thereafter, notify WEIMANN in writing that
we have taken this action, and that the material removed will not be used as a basis for any
future personnel action against him or referred to in response to any inquiry from any employer,
employment agency, unemployment insurance office, or reference seeker, or otherwise used
against him.
WE WILL offer immediate and full reinstatement to JARRON RETZLAFF (RETZLAFF),
CHARLES DUFFY (DUFFY), PEDRO CHAVEZ (CHAVEZ), PAUL BRIMIE (BRIMIE), and
TERRANCE NEILSON (NEILSON) to their former positions, or, if those positions no longer
exist, to substantially equivalent positions without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make whole with interest RETZLAFF, DUFFY, CHAVEZ, BRIMIE, and NEILSON for
any loss of earnings and other benefits suffered as a result of our unlawful discrimination
against them.
WE WILL remove from our files any reference to our unlawful refusal to reinstate the employees
named above and WE WILL, within 3 days thereafter, notify them in writing that this has been
done and that the refusals to reinstate will not be used against them in any way.
WE WILL within 14 days, remove from our files, any and all records of our March 16, 2009,
discharges of the employees named above, and within 3 days thereafter, notify the employees
named above, in writing that we have taken this action, and that the material removed will not
be used as a basis for any future personnel action against them, or referred to in response to
any inquiry from any employer, employment agency, unemployment insurance office, or
reference seeker, or otherwise used against them.
WE WILL, within 14 days, offer LANCE JAMISON, (JAMISON) DON LATHAM, (LATHAM),
MAHIELIO RICO, (RICO), JAMES OSTEROS, (OSTEROS) AND FERNANDO LEBRON,
(LEBRON), employment to sheet metal shop and field positions for which they applied, or if
those positions no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges they would enjoyed absent the discrimination against
them.
WE WILL make whole with interest JAMISON, LATHAM, RICO, OSTEROS, AND LEBRON,
for any loss of earnings and other benefits suffered as a result of the discrimination against
them.
WE WILL, within 14 days, expunge from our files all references to the unlawful failure to hire
and to consider for hire MONTROY, JAMISON, LATHAM, MOLINA, RICO, OSTEROS, AND
LEBRON and within 3 days thereafter, notify them in writing that this has been done and that
the unlawful conduct will not be used against them in any way.
W.D. MANOR MECHANICAL CONTRACTORS,
INC.
(Employer)
Dated By
(Representative) (Title)
JD(SF)–16–10
Phoenix, Arizona
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.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
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, 602-640-2146.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the
Decision of which this Notice is a part may do so by contacting the Board’s Offices at the
address and telephone number appearing immediately above. The final decision and this notice
are available in either English or Spanish.