Allstate Power Vac, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 2009

354 N.L.R.B. 980 (N.L.R.B. 2009)

354 NLRB No. 111
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Allstate Power Vac, Inc. and Laborers International
Union of North America, Local 78. Cases 29–
CA–28264, 29–CA–28351, 29–CA–28394, 29–
CA–28556, 29–CA–28594, 29–CA–28637, 29–
CA–28683, and 29–RC–11505
November 30, 2009
DECISION AND ORDER AND ORDER
REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On August 11, 2008, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board1 has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions as modified below, to adopt the
Order as modified and set forth in full below,3 and to

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Narricot Industries, L.P. v.
NLRB,___F.3d___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell
Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for
cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New
Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted
___S.Ct.___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern
Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert.
filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept.
29, 2009) (No. 09-377).
2 In the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(a)(1) by unlawfully prohibiting employees
from wearing union stickers on their hardhats and from wearing other
union insignia, and that the Respondent violated Sec. 8(a)(3) and (1) of
the Act by unlawfully discharging Jose Castillo and A. Rivera and
unlawfully laying off Jose Adames, Miguel Bisono, and Victor
Vasquez.
Also, in the absence of exceptions, we adopt the judge’s dismissal of
the allegation that the Respondent violated Sec. 8(a)(1) by threatening
employees with the loss of bonuses and raises if they supported the
Union.
3 We have modified the judge’s recommended Order to include a re-
scission remedy for the Respondent’s unlawful prohibition on the wear-
ing of union insignia.
We have further modified the recommended Order to include back-
pay and reinstatement remedies for the unlawful discharges of employ-
remand certain issues to the judge for further findings,
analysis, and conclusions consistent with this decision.
I. REFUSAL-TO-HIRE AND REFUSAL-TO-CONSIDER
ALLEGATIONS
The judge found that the Respondent did not violate
Section 8(a)(3) and (1) of the Act by refusing to hire, or
consider for hire, union applicants Edwin DeJesus, Fa-
bian Derewiecki, Eli Kent, Manuel Ortiz, Jorge Roldan,
Robert Rowek, and Krzysztof Walek. We adopt the
judge’s dismissal of these allegations for the reasons dis-
cussed below.
A. Factual Background
On March 21, 2007,4 the Respondent placed a classi-
fied newspaper advertisement stating that it was hiring
operators/drivers who had commercial driver’s licenses
(CDLs) and endorsements for hazardous materials han-
dling (HAZMAT). The same day that the advertisement
was placed in the newspaper, union coordinator Byron
Silva sent union members Castillo and A. Rivera to apply
for employment with the Respondent as covert salts; they
were instructed not to reveal their union membership to
the Respondent for the time being. Although neither
Castillo nor A. Rivera had a CDL or a HAZMAT en-
dorsement, they were allowed to fill out applications,
and, at the Respondent’s request, they produced driver’s
licenses and social security cards. Thereafter, they each
spoke with Respondent’s operations manager, Chris
Baran. At the end of the process, arrangements were
made for Castillo and A. Rivera to undergo a drug test
and physical.
In April, a few weeks after they applied, Castillo and
A. Rivera began working for the Respondent as field
technicians, an unskilled labor position. The record does
not establish the date on which the Respondent decided
to hire Castillo and A. Rivera or the date on which Casti-
llo and A. Rivera were officially notified that they had

ees Castillo and A. Rivera on or about June 4, 2007. The judge found
that Castillo and A. Rivera were not entitled to such remedies because
they were covert salts. The judge stated:
Both Rivera and Castillo were members of the Union and both before
and immediately after their discharges on June 4, obtained other em-
ployment at substantially higher wage rates. There is no doubt that-
neither man intended to work for the Respondent on a permanent ba-
sis or even on an extended temporary basis. And after they were dis-
charged they suffered no loss ofearnings or benefits.
We disagree with the judge’s analysis and find that Castillo and A. Rivera
are entitled to reinstatement and backpay remedies for their unlawful dis-
charges. The issue of whether Castillo and A. Rivera actually suffered a
loss of earnings or benefits properly is left to the compliance stage of this
proceeding.
We have substituted a new notice to employees to comport with
these findings.
4 All dates are in 2007, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
been hired.5 According to the Respondent’s records,
April 17 was the “hire date” of Castillo and A. Rivera.6
On the morning of April 13, union official Silva sent
DeJesus, Derewiecki, Kent, Ortiz, Roldan, Rowek, Guian
Rivera,7 and Walek (“the overt salts”) to apply for work
at the Respondent as overt salts. The overt salts went to
the Respondent’s facility in pairs, wearing union clothing
and carrying recording devices to record what was said
during the application process.
When the overt salts entered the facility, they asked
Respondent’s receptionist, Nidia Delgado, for employ-
ment applications and advised Delgado that it was their
intention to organize the Respondent.8 Delgado re-
sponded that the Respondent was not interested in be-
coming a union shop, but informed the applicants that
they could apply for one of the available driver positions.
Delgado further informed them that, in order to apply for
such positions, they would have to produce driver’s li-
censes with CDLs and HAZMAT endorsements. Al-
though some of the applicants indicated to Delgado that
they possessed those licenses, it is undisputed that, in
fact, none of them did. When none of the individuals
were able to produce the required licenses, Delgado ad-
vised them that they could come back and fill out appli-
cations when they had obtained them.
One of the applicants then inquired whether he could
fill out an application for a field technician position.
Delgado told him that the Respondent did not have open-
ings for field technicians at that time, but that he could
complete an application and she would keep it on file.
He did not, however, complete an application. None of
the applicants returned to the Respondent after April 13,
nor did they make any further attempt to apply for em-
ployment with the Respondent.

5 The judge specifically found that Castillo and A. Rivera had been
offered their positions before April 13 and that the Respondent had
“committed itself to hiring these two people almost immediately after
they applied for jobs on March 21, 2007.” The judge also found that,
as of April 13, the Respondent,”having recently [decided] to hire
around four laborers,” had no immediate need to hire field technicians.
Because the judge did not indicate that these findings were based on
credibility determinations, and because contradictory evidence exists,
we do not rely on these findings.
6 The record suggests that the Respondent hired four additional field
technicians in April: Luis Perez Jr. and Delvis Vargas, both of whom
had hire dates of April 3, and Freddy Cedeno Perez and Jose Peralta,
both of whom had hire dates of April 17. The record does not establish
when the Respondent made offers of employment to these individuals
and/or committed to hiring them.
7 Guian Rivera is not an alleged discriminatee in this case because,
according to the General Counsel, he could not have taken a position
with the Respondent if one was offered to him.
8 A transcript of the relevant portions of the recorded conversations
between the overt salt pairs and Delgado is reproduced in the judge’s
decision.
B. Refusal To Hire
In order to establish a refusal-to-hire violation under
FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir.
2002), the General Counsel must establish, by a prepon-
derance of the evidence, the following elements:
(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.
Id. at 12 (footnotes omitted).
Once the General Counsel has met this initial burden,
“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.” Id. (footnote omit-
ted).
Applying FES here, we find that the General Counsel
has failed to meet his initial burden. At the time that the
seven overt salts attempted to apply for employment, the
Respondent was hiring drivers, a position that required a
CDL and a HAZMAT endorsement. The General Coun-
sel concedes, however, that the overt salts did not satisfy
those requirements. Accordingly, it is clear that the Gen-
eral Counsel has failed to establish that the Respondent
violated the Act for failing to hire the overt salts for the
driver positions.
The General Counsel further contends that the Re-
spondent unlawfully failed to hire the overt salts for field
technician positions, for which they were qualified. Un-
der FES, in order to prove this violation, the General
Counsel must first establish that the Respondent was
hiring field technicians, or had concrete plans to hire
field technicians, on April 13, the date on which the overt
salts visited the Respondent’s facility. The General
Counsel has failed to meet this burden.
The evidence in the record does not establish when, in
relation to the time that the seven overt salts attempted to
apply for employment, offers of employment were made
to Castillo, A. Rivera, Cedeno Perez, and Jose Peralta, all
of whom the Respondent hired in mid-April. Nor does
the record establish when the Respondent committed to
hiring them. Finally, the record does not establish that
the Respondent had any additional field technician posi-
tions to fill after it had hired six individuals for that posi-
tion in April. There is simply too much left unproved to
find that the General Counsel has established that, at the
ALLSTATE POWER VAC, INC. 3
time in question, the Respondent was hiring for a field
technician position for which the seven overt salts may
have had the necessary experience or training.
In these circumstances, we find that the General Coun-
sel has failed to meet his initial burden under FES, and
on this ground we adopt the judge’s dismissal of the alle-
gation that the Respondent violated Section 8(a)(3) and
(1) by refusing to hire overt salts DeJesus, Derewiecki,
Kent, Ortiz, Roldan, Rowek, and Walek.9
C. Refusal To Consider
In order to establish a refusal-to-consider violation un-
der FES, supra, 331 NLRB at 15, the General Counsel
has the initial burden of showing “(1) that the respondent
excluded applicants from a hiring process; and (2) that
antiunion animus contributed to the decision not to con-
sider the applicants for employment.” If the General
Counsel establishes this, the burden then shifts to the
respondent “to show that it would not have considered
the applicants even in the absence of their union activity
or affiliation.” Id.
To begin, we find, even assuming arguendo that (a) the
General Counsel met his initial burden in establishing
that the Respondent excluded the overt salts from a “hir-
ing process” for the driver positions, and (b) antiunion
animus contributed to that decision, the Respondent has
met its burden to show that it would not have considered
the applicants for the driver positions even in the absence
of their union affiliation. Even had the Respondent al-
lowed the overt salts to apply for driver positions, it is
undisputed that drivers were required to possess CDLs
and HAZMAT endorsements and that none of the overt
salts had them. Accordingly, the Respondent has estab-
lished that its failure to consider the overt salts for the
driver positions was based on the overt salts’ lack of re-
quired qualifications, rather than on their union affilia-
tion.
Further, insofar as the General Counsel argues that the
Respondent unlawfully refused to consider the overt salts
for field technician positions, we find that the General
Counsel has failed to establish by a preponderance of the
evidence that the Respondent excluded the overt salts
from a “hiring process” involving those positions. As
explained above, the General Counsel has established
neither that, at the time the seven overt salts attempted to
apply for employment on April 13, the Respondent was
hiring field technicians, nor that the Respondent had a
policy of accepting applications for positions for which it

9 In light of our disposition of this issue, we find it unnecessary to
pass on the judge’s apparent finding—using a Toering Electric-type
analysis—that the Respondent did not unlawfully refuse to hire the
seven overt salts because they were not genuine applicants for em-
ployment. See generally Toering Electric Co., 351 NLRB 225 (2007).
was not currently hiring.10 Furthermore, the General
Counsel has not established that the Respondent ex-
cluded the overt salts from applying for such positions in
the first place; in fact, Delgado expressly informed one
of the applicants that she would accept an application for
a Field Technician position, even though the Respondent
was not currently hiring for that position. None of the
overt salts, however, actually submitted applications or
pursued the matter further.
Accordingly, we adopt the judge’s dismissal of the al-
legation that the Respondent violated Section 8(a)(3) and
(1) by refusing to consider for hire overt salts DeJesus,
Derewiecki, Kent, Ortiz, Roldan, Rowek, and Walek.
II. ADDITIONAL 8(a)(3) AND (1) ALLEGATIONS
The General Counsel has excepted to the judge’s dis-
missal of several 8(a)(3) and (1) allegations in which the
General Counsel accuses the Respondent of taking ad-
verse actions against its employees based on their activi-
ties in support of the Union. Specifically, the General
Counsel alleges that the Respondent subjected A. Rivera
to more onerous working conditions; discharged Adames
as a voluntary quit when he did not return to work as
requested following an excused absence; discharged
Rafael Bisono for failing to wear safety equipment; sus-
pended William Dominich and Hector Soler for failing to
wear safety equipment; and discharged Miguel Bisono
for urinating into a coworker’s drink bottle.11
Where, as here, an employer is charged with violating
Section 8(a)(3) by taking adverse action against employ-
ees because of their support for, or activities on behalf of,
a union, the Board applies the Wright Line test to deter-
mine whether the alleged violation has been established.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must first show by a
preponderance of the evidence that union activity was a
motivating factor in the employer’s adverse action. Id. at
1089. If this is established, the burden shifts to the em-
ployer to show that it would have taken the same adverse
action even in the absence of the union activity. Id.
Here, the judge, in analyzing the 8(a)(3) and (1) allega-
tions described above, did not cite Wright Line, nor is it
clear that he undertook the analysis required under that
case. Although his analysis is suggestive of a Wright
Line-type analysis, it is difficult to discern whether he

10 As cited below, Delgado indicated that she would accept a field
technician application from one of the overt salts. This single instance,
however, does not establish that imposition by the Respondent of a
policy of not accepting applications for positions for which it was not
currently hiring was a pretext for discrimination.
11 The facts surrounding these allegations are fully set forth in the
judge’s decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
decided to dismiss the allegations because the General
Counsel had not met his initial burden or because the
Respondent demonstrated that it would have taken the
same employment actions even in the absence of pro-
tected activity. Nor is it clear that the judge considered
all of the facts potentially relevant to a Wright Line
analysis.
In view of these circumstances, we believe that it
would be premature for us to consider the General Coun-
sel’s exceptions with respect to these allegations. We
therefore sever the above-mentioned 8(a)(3) allegations
and remand them to the judge for analysis applying the
Wright Line framework. On remand, the judge should
consider all of the evidence relevant to such an analysis;
make any additional findings of fact and credibility de-
terminations that may be necessary; and issue a supple-
mental decision setting forth his findings, analysis, and
conclusions.12
ORDER
The National Labor Relations Board orders that the
Respondent, Allstate Power Vac, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or laying off employees because of
their membership in or support for Laborers International
Union of North America, Local 78.
(b) Prohibiting employees from wearing union decals
and other union insignia. This does not, however, pre-
clude the employer from requiring its employees to wear
appropriate protective clothing when necessitated by
their work assignments.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

12 In analyzing these allegations under Wright Line, the judge should,
where necessary, address the General Counsel’s arguments that the
Respondent deviated from past practice in taking the above alleged
unlawful actions and/or treated the affected employees differently than
it had treated other similarly situated employees in the past.
With regard to the allegation that the Respondent imposed more on-
erous working conditions on A. Rivera, the General Counsel was re-
quired to prove that an A. . Rivera’s union activity was a motivating
factor for the imposition of working conditions that were more onerous
than those to which he would have been subject absent his union activ-
ity to establish his initial burden under Wright Line. We therefore
disavow any implication in the judge’s decision that the General Coun-
sel was required to prove that the conditions were “particularly oner-
ous.” We also disavow the judge’s conclusion that the remedy for A.
Rivera’s unlawful discharge would encompass any remedy that would
relate to this conduct. The two violations are distinct, as is the appro-
priate remedy if a violation is found.
(a) Make Jose Adames, Miguel Bisono, and Victor
Vasquez whole for any loss of earnings and other bene-
fits they have suffered as a result of their unlawful lay-
offs on about June 4, 2007, computed on a quarterly ba-
sis from the date of their layoffs to the date of proper
offers 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).
(b) Within 14 days from the date of this Order, offer
Jose Castillo and A. Rivera full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights previously enjoyed.
(c) Make Jose Castillo and A. Rivera whole for any
loss of earnings and other benefits suffered as a result of
their unlawful discharges on about June 4, 2007, com-
puted on a quarterly basis from the date of their dis-
charges, less any net interim earnings, as prescribed in
F.W. Woolworth Co., supra, plus interest as computed in
New Horizons for the Retarded, supra.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful lay-
offs/discharges of Jose Adames, Miguel Bisono, Jose
Castillo, A. Rivera, and Victor Vasquez and, within 3
days thereafter, notify them in writing that this has been
done and that the unlawful layoffs/discharges will not be
used against them in any way.
(e) Rescind its unlawful policy prohibiting employees
from wearing union decals and other union insignia.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facilities in Brooklyn, New York, a copy of the at-
tached notice marked “Appendix.”13 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ALLSTATE POWER VAC, INC. 5
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all employees and former employees employed by the
Respondent at any time since May 30, 2007.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the allegations that the
Respondent violated Section 8(a)(3) and (1) of the Act
by subjecting A. Rivera to more onerous working condi-
tions; discharging Jose Adames as a voluntary quit when
he did not return to work as requested following an ex-
cused absence; discharging Rafael Bisono for failing to
wear safety equipment; suspending William Dominich
and Hector Soler for failing to wear safety equipment;
and discharging Miguel Bisono for urinating into a co-
worker’s drink bottle be severed and remanded to Ad-
ministrative Law Judge Raymond P. Green for further
action consistent with this decision.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
Dated, Washington, D.C. November 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or lay off employees because
of their membership in or support for Laborers Interna-
tional Union of North America, Local 78.
WE WILL NOT prohibit employees from wearing union
decals and other union insignia. This does not, however,
preclude us from requiring our employees to wear appro-
priate protective clothing when necessitated by their
work assignments.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make Jose Adames, Miguel Bisono, and Vic-
tor Vasquez whole for any loss of earnings and other
benefits they have suffered as a result of their unlawful
layoffs on about June 4, 2007, computed on a quarterly
basis from the date of their layoffs to the date of proper
offers of reinstatement, less any net interim earnings,
plus interest.
WE WILL within 14 days from the date of this Order,
offer Jose Castillo and A. Rivera full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights previously enjoyed.
WE WILL make Jose Castillo and A. Rivera whole for
any loss of earnings and other benefits they have suffered
as a result of their unlawful layoffs/discharges on about
June 4, 2007, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful lay-
offs/discharges of Jose Adames, Miguel Bisono, Jose
Castillo, A. Rivera, and Victor Vasquez and, WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the unlawful layoffs/discharges
will not be used against them in any way.
WE WILL rescind our unlawful policy prohibiting em-
ployees from wearing union decals and other union in-
signia.
ALLSTATE POWER VAC, INC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Brent E. Childerhose, Esq. and Linda Harris-Crovella, Esq.,
for the General Counsel.
Robert Ziskin, Esq. and Richard Ziskin, Esq., for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard
these consolidated cases in Brooklyn, New York, on various
dates in April and May 2008.
The Representation Case
The Union filed a petition in Case 29–RC–11505 on August
30, 2007, and pursuant to a Stipulated Election Agreement
approved by the Regional Director on September 17, 2007, an
election was conducted on October 5, among the employees in
the following unit:
All full-time and regular part-time field technicians, drivers,
pump operators, mechanics and working supervisors em-
ployed by the Employer at its facilities located at 180 Varick
Street, Brooklyn, New York and 1 North 12th Street, Brook-
lyn, New York, including field technicians and operators per-
forming work for the new York city Department of Environ-
mental Protection, but excluding all other employees, includ-
ing office and temporary employees, guards and supervisors
as defined in Section 2(11) of the Act.
A revised tally of ballots showed that of approximately 58
eligible voters, 28 cast ballots for the Union, 26 cast votes
against unionization, and 4 cast challenged ballots. The chal-
lenges were therefore sufficient in number to affect the out-
come of the election. Three of the challenges were made by the
Union, these being challenges to the votes of Sean Burke, Don-
ald Sekulski, and Abdool Sideik. One of the challenges was
made by the Employer; that being to the vote cast by Jose
Adames, whom the Employer claims was not employed as of
the date of the election. The Union contends that he was ille-
gally discharged because of his union activities and therefore
was an eligible voter.
The Union filed a group of objections and the Regional Di-
rector, on January 8, 2008, issued a Report on Challenges and
Objections and a Notice of Hearing. With respect to Objections
2, 3, 5 and 6, the Regional Director concluded that they had no
merit and recommended that they should be dismissed. With
respect to Objection 4, the Regional Director ordered that a
hearing be conducted before a hearing officer. However, with
respect to Objection 1, he ordered that this particular objection,
which alleged the discriminatory discharge of Jose Adames, be
consolidated with the hearing on the unfair labor practice cases
described below.
Regarding the challenges, the Regional Director ordered that
a hearing be conducted before a hearing officer on the issues of
whether Sean Burke, Donald Sekulski, and Abdool Sideik were
in the unit and therefore eligible voters whose ballots should be
opened. However, as to the ballot of Jose Adames, the Re-
gional Director ordered that a hearing on whether he was eligi-
ble to vote should be held before an administrative law judge
because the resolution of his eligibility was dependent upon
whether he was lawfully or unlawfully discharged on October
1, 2007.
On March 25, 2008, Rachel Mead Zwighaft issued a Hearing
Officer’s Report and Recommendations on Objections and
Challenges. In this report, made after a hearing, she recom-
mended that the challenges to the ballots of Sean Burke, Don-
ald Sekulski, and Abdool Sideik be sustained on the grounds
that these individuals were not employed in classifications in-
cluded in the Stipulated Election Agreement. She concluded
and recommended to the Board that the Union be certified as
the collective-bargaining representative. Alternatively, she
recommended that in the event that the Board did not agree
with the eligibility findings, then the election should be set
aside based on certain conduct by the Employer’s agents that
she found to be objectionable.
On July 16, 2008, the Board affirmed the hearing officer’s
recommendations and issued a Certification of Representative.
The Unfair Labor Practice Cases
The charge in Case 29–CA–28264 was filed on April 16,
2007. The charge in Case 29–CA–28351 was filed on June 20,
2007. The charge in Case 29–CA–28394 was filed on July 16,
2007. The charges in Cases 29–CA–28556, 29–CA–28594,
29–CA–28636, and 29–CA–28683 were filed respectively on
October 9, 16 and 29, November 28, and December 13, 2007.
On August 27, 2007, the Regional Director issued an Order
Consolidating Cases and a Consolidated Complaint that was
amended on January 29, 2008. In substance, the unfair labor
practice allegations are as follows:
1. That on or about April 13, 2007, the Respondent, for dis-
criminatory reasons refused to consider for hire, Edwin DeJe-
sus, Fabian Derewiecki, Eli Kent, Manuel Ortiz, Jorge Roldan,
Robert Rowek, and Kryzsztof Walek.
2. That in early May 2007, the Respondent, by Glenn Burke,
its general manager, threatened employees with loss of raises
and bonuses if they continued to support or assist the Union.
3. That on or about May 30, 2007, the Respondent, for dis-
criminatory reasons, subjected Angel Rivera to more onerous
working conditions by assigning him the arduous and meaning-
less tasks of digging holes and of loading and unloading drums
onto a truck in a heavy uniform.
4. That on or about May 30, 2007, the Respondent promul-
gated rules prohibiting employees from wearing union stickers
on their hardhats and wearing union clothing with union insig-
nia.
5. That on or about June 4, 2007, the Respondent for dis-
criminatory reasons, discharged Jose Adames, Miguel Bisono,
Jose Castillo, Angel Rivera, and Victor Vasquez.
6. That on or the following dates, the Respondent discharged
the named employees for discriminatory reasons.
Jose Adames October 1, 2007
Rafael Bisono October 5, 2007
Miguel Bisono December 12, 2007
7. That on or about October 5, 2007, the Respondent, for dis-
criminatory reasons, suspended William Dominich and Hector
Soler.
ALLSTATE POWER VAC, INC. 7
Based on the evidence as a whole, including my observation
of the demeanor of the witnesses and after consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is engaged in the business of removing or
cleaning hazardous waste. Its home office is in Rahway, New
Jersey, and it operates throughout the northeastern United
States. In relation to its New York operations (consisting of
two facilities), its principle customer is Consolidated Edison
(Con Ed), for whom it contracts to change manhold covers and
to flush and clean transformer vaults and manholes. Most of its
New York employees fall into three categories; (1) field techni-
cians who essentially are relatively unskilled laborers; (2) driv-
ers and operators of trucks; and (3) field supervisors who go out
into the field and are in charge of jobs. Drivers are people who
drive trucks and equipment operators are people who operate
the vacuum trucks that are used to suck out dirt from manholes.
Both of these positions require commercial driving licenses.
(CDL licenses). All parties agree that the people who are
called field supervisors are employees and not supervisors
within the meaning of Section 2(11) of the Act. In the Brook-
lyn operations there are about 8 to 12 field supervisors. They
voted in the election.
In addition to a group of permanent employees who work on
a regular basis (and who are assigned to the shop when no out-
side jobs are scheduled), the Company sometimes utilizes tem-
porary workers who are referred by another related company
located in New Jersey called Paragon. It appears that Paragon
is owned by the same person that owns Allstate. The Stipulated
Election Agreement excluded those temporary workers.
The person in charge of the New York operations is Glen
Burke who is the general manager. He has substantial authority
with respect to the New York employees and can hire and fire
at his own discretion. He reports to management located in
Rahway, New Jersey. Working as supervisors under Burke for
the Brooklyn locations, are Chris Baran, the operations man-
ager; Donald Zorgiski, a coordinator; and Al Guerrero who is
the local health and safety manager.
The Union has been engaged in organizing two types of
companies in the New York Metropolitan area. First, is a set of
companies that deal with various types of hazardous materials
such as Allstate. The second are a set of companies who are
engaged in asbestos removal.
B. Covert Salting and Company Knowledge of
Union Activities
By letter dated March 9, 2007, the Union sent a letter to the
Respondent indicating (a) that it was commencing an organiz-
ing drive at Allstate; (b) that the NLRA precluded the employer
from restraining or coercing its employees; and (c) that it would
be distributing literature to Allstate employees at various pro-
jects.
On March 21, 2007, the Company placed a help wanted ad in
the Daily News indicating that it was seeking to hire operators
who had CDL licenses (commercial driving licenses) and H&T
(hazardous material handling endorsements). Union Agent
Byron Silva thereupon sent two members, Jose Castillo and
Angel Rivera, who went to Allstate’s Varick Street offices and
filled out applications for jobs as field technicians. They could
not apply for the operator/driver job because neither had the
required commercial driver’s license. They filled out the appli-
cation forms in the office, showed their social security cards,
driver’s licenses, and were interviewed separately by Chris
Baran. At the conclusion of the interviews, they both were told
that they could have jobs and arrangements were made for them
to get a drug test. Neither informed the Employer that they
were members of a union or that they intended to organize em-
ployees on behalf of the Union. They were, as described by
Silva, “covert” salts and were instructed to keep their union
membership secret until the appropriate time. Castillo and
Rivera were told by the Union that if they obtained jobs, the
Union would make up the difference in the wage rate paid by
the Employer and the wage rate that they had been getting from
being employed as shop stewards at union employers. Also,
the Union agreed to provide them with any benefits not pro-
vided by Allstate.
Castillo and Rivera did not hear anything until later in April
2007. Nevertheless, they started as field techs on April 16 or
17, 2007, and spent their first week in a training program held
in Rahway, New Jersey. (In this regard, the evidence shows
that the Employer typically amalgamates a class of new hires
for a 40-hour training program.) Both Castillo and Rivera filled
out new job applications on April 17, 2007. A summary of
employees listed by hire dates (GC Exh. 20) shows that there
were four other field techs also hired in April 2007. These
were Luis Perez Jr., Delvis Vargas, Freddy Cedeno Perez, and
Jose Peralta. This exhibit also shows that there were two
equipment operators (Phillip Monastiriotis and Conrad Un-
thank), hired in early May 2007 and two other persons (David
Nathanial and Victor Vasquez), listed as field techs who were
hired respectively on May 8 and 23.1
As instructed, Castillo and Rivera engaged in no organizing
activities during their initial period of employment and did not
“come out” until the morning of May 30, 2007. However, as
they joined the Union in handing out literature at the Com-
pany’s premises on that date, the timing of their layoffs on June
4, strongly suggests that a motivation for this action was be-
cause the Company had become aware that they were union
supporters.
According to Silva, in or about March 2007, either shortly
before or shortly after Castillo and Rivera got their jobs, the
Union managed to speak independently to some of the employ-

1 The wage rate listed for David Nathanial is $15-per hour and this
indicates to me that he was not hired as a field tech because his rate is
almost 50-percent more than that for a field tech.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ees including Jose Adames, Felix Rodriguez, and Jose Arroyo.
Silva testified that at one meeting held in March 2007, he ob-
tained three authorization cards and that at a second meeting, he
obtained another three cards. Employee Jose Adames testified
that he first heard about the Union from Al Guerrero, who told
him that he (Guerrero) thought that getting a union into the
shop would be a good idea. (As noted above, the parties agree
that Guerrero is a supervisor as defined in Sec. 2(11) of the
Act).
The evidence shows that the Company became aware that
that the Union was interested in organizing its employees as
early as March 9, 2007, because the Union’s agents told them
so. But did the Company become aware that any of its employ-
ees were interested before May 30? In this regard, the General
Counsels offered the testimony of Jose Adames, an alleged
discriminate, who testified that sometime in April or May 2007,
he heard Burke tell a group of about eight employees that “any-
one who wanted to be union wouldn’t get bonuses or raises or
anything.” Adames testified that the group included Miguel
Bisono, Felix Rodriguez, and Jose Arroyo. Although Miguel
Bisono was called as a witness by the General Counsels, he did
not corroborate Adames. Nor did the General Counsels offer
any other corroboration of this story. Inasmuch as I conclude
that Adames was not a reliable witness and absent any corrobo-
ration on this point, I shall not credit this assertion. I therefore
recommend that the allegation of the complaint based on this
testimony be dismissed.
C. Overt Salting
On the morning of April 13, 2007, Silva sent teams of union
agents into the Company’s office to apply for jobs. They were
sent in pairs and they were given digital recorders to memorial-
ize the conversations. When they entered the building, they
wore union jackets so that they would be identified as coming
from Local 78. They all talked to a receptionist in the office
named Nidia who was not called by either side to testify in this
proceeding. There was no evidence to suggest that this person
had the authority to hire anyone or that she had the authority to
consider anyone for hire. At most, the evidence shows that her
functions included handing out job application forms and ask-
ing applicants to provide identification in the form of drivers’
licenses and social security cards.
The evidence indicates that as of April 13, 2007, the Com-
pany having recently deciding to hire around four laborers (in-
cluding union salts Jose Castillo and Angel Rivera), did not
immediately need any field technicians.2
The recording of the visit by Krzysztof Walek and Manuel
Ortiz is, in pertinent part, as follows:
MANUEL ORTIZ: —application—license ‘cause we’re
—

2 Although the evidence is that Castillo and Rivera did not actually
begin their training program until April 17, 2007, their testimony indi-
cates to me that the Company committed itself to hiring these two
people almost immediately after they applied for jobs on March 21,
2007. It seems probable to me that they were not immediately put on
the payroll because the Company waited to assemble a class of new
employees for training in New Jersey. This is a 40-hour training course.
OFFICE WOMAN: Okay, but—
MANUEL ORTIZ: —we can, you know, any special—
OFFICE WOMAN: No, we’re not a union shop.
MANUEL ORTIZ: I’m sorry?
OFFICE WOMAN: We’re not a union shop.
MANUEL ORTIZ: That’s no problem. That’s no prob-
lem. The only thing is when I come to work, you know, I
expect to organize company.
OFFICE WOMAN: We’re not interested in becoming a
union.
KRZYSZTOF WALEK: You’re not expecting to become
—
MANUEL ORTIZ: Why not? Why?
OFFICE WOMAN: ‘Cause we’re not— we’re not a un-
ion shop and we’re not interested in becoming a union
shop.
MANUEL ORTIZ: So that means you no—you cannot
even take—
OFFICE WOMAN: Oh, we can—
MANUEL ORTIZ: You cannot give me any chance to
work—
OFFICE WOMAN: If you want to sit down and fill out
an application—driver’s license and—
MANUEL ORTIZ: But you say—when you say that you
no—you say that you don’t expect to get union—
OFFICE WOMAN: Are you—do you have a driver’s li-
cense?
KRZYSZTOF WALEK: Yeah, we do have.
OFFICE WOMAN: Then let me make a copy of it, I’ll be
happy to give you an application for—I need a CDL with a
HAZMAT and tanker endorsement.
KRZYSZTOF WALEK: So you hire only with CDL and
license?
OFFICE WOMAN: We’re only hiring drivers right now.
You have to have a CDL with HAZMAT and tanker en-
dorsement on it.
KRZYSZTOF WALEK: Okay.
MANUEL ORTIZ: Okay. You don’t send your workers
for training?
OFFICE WOMAN: If you have your license—when we
hire we hire them with CDL with HAZMAT and tanker—
MANUEL ORTIZ: Okay.
OFFICE WOMAN: —endorsements on it.
MANUEL ORTIZ: Okay.
OFFICE WOMAN: That’s what we’re hiring right now.
You have to—
MANUEL ORTIZ: What if I didn’t—I have it but I don’t
have it with me right now.
OFFICE WOMAN: Then when you come back and fill
out—you bring me your license, I’ll make a copy of it,
bring your social security card—
KRZYSZTOF WALEK: I have everything. I have every-
thing.
OFFICE WOMAN: Then I’ll be happy to—
MANUEL ORTIZ: (Inaudible)—
OFFICE WOMAN: No, you have to fill it out right here.
MANUEL ORTIZ: —job for you?
OFFICE WOMAN: You have to have it here.
ALLSTATE POWER VAC, INC. 9
MANUEL ORTIZ: There is nothing else we can work
on, only driver’s license?
OFFICE WOMAN: I have nothing else right now—
MANUEL ORTIZ: And only for—
OFFICE WOMAN: —only drivers and you have to know
how to drive standard.
MANUEL ORTIZ: Okay. Well, thank you very much.
KRZYSZTOF WALEK: Thank you.
OFFICE WOMAN: You’re welcome.
(END OF RECORDING)
The recording of the meeting involving union agents Edwin
DeJesus and Robert Rowek was as follows:
ROBERT ROWEK: Good morning.
EDWIN DE JESUS: My name is Edwin; is it free to go
apply for a job?
NIDIA: For?
EDWIN DE JESUS: For applications?
NIDIA: For what, a driver?
EDWIN DE JESUS: For worker, HAZMAT, whatever it
is.
NIDIA: For driver is what we’re accepting right now.
With HAZMAT and tanker endorsements—
EDWIN DE JESUS: Okay. I’m from Local 78, I’m one
of the organizers and this is Rob, we’re looking for work.
We want to organize the Company so we want to—
NIDIA: What do you mean you want to organize the
Company?
EDWIN DE JESUS: We’re from the Union.
ROBERT ROWEK: We are from Local 78.
EDWIN DE JESUS: Local 78, yeah.
NIDIA: Okay. Is someone expecting you?
EDWIN DE JESUS: No, no one is expecting—I want an
application for a job. I want to work to organize the Com-
pany so you can come—I mean, the Company could be-
come organized and become a union contractor.
NIDIA: Well, who said that we wanted—
EDWIN DE JESUS: I mean, I—I want to help you guys
and you need me.
NIDIA: (Inaudible).
EDWIN DE JESUS: But can I get an application?
NIDIA: Yeah, absolutely you can get an application.
There aren’t many—but do you have HAZMAT and
tanker endorsements?
EDWIN DE JESUS: Yeah, I have HAZMAT, I have all
my licenses.
NIDIA: Okay. Can I see it, please?
EDWIN DE JESUS: I don’t have it with me.
NIDIA: You don’t have it with you? We have to know
otherwise we—‘cause that’s the only thing we’re hiring
for.
EDWIN DE JESUS: But can I get the application so I can
fill it out and—
NIDIA: (Inaudible).
ROBERT ROWEK: Yeah, if we can fill out the applica-
tion and just—
NIDIA: Absolutely. Let me have your license and I’ll
make a copy of it and I’ll give you an application, you can
sit down and fill it out.
EDWIN DE JESUS: Okay.
NIDIA: Can I just—
EDWIN DE JESUS: I don’t have it. Can I get—take this
and fill it out?
NIDIA: No, you need to give me your license, I will
make a copy of it—
EDWIN DE JESUS: You need the license?
NIDIA: And your social security card—
EDWIN DE JESUS: Okay.
NIDIA: —I will attach it to your application, you sit
here and fill it out and I’ll take you right out to take the
test right away.
EDWIN DE JESUS: Okay.
NIDIA: Okay.
EDWIN DE JESUS: All right. Can I get—come back
with (inaudible)—
NIDIA: Yes, HAZMAT and tanker, A or B CDL. You
have to be able to drive standard.
EDWIN DE JESUS: Okay. Now, what about the hazard-
ous waste workers; what are you—you hiring anybody for
that?
NIDIA: No, not here. Field technicians? I have none.
EDWIN DE JESUS: No, not right now?
NIDIA: No.
EDWIN DE JESUS: Okay.
ROBERT ROWEK: (Inaudible.)
EDWIN DE JESUS: Sorry, what was your name?
NIDIA: Nidia.
ROBERT ROWEK: Is there a number to call? (Inaudi-
ble) can you give me application and I’ll come back with
all information, all different thing, my license, everything?
NIDIA: Bring your license, bring your social security
card.
ROBERT ROWEK: Uh-huh.
NIDIA: And then—
ROBERT ROWEK: Copy or original, right?
NIDIA: I’m sorry?
ROBERT ROWEK: A copy? You want only original li-
cense?
NIDIA: I need your original license—
ROBERT ROWEK: All right.
NIDIA: —and I need your original social security card.
ROBERT ROWEK: No problem.
EDWIN DE JESUS: Okay.
ROBERT ROWEK: That’s the office number; right?
NIDIA: This is the office number.
EDWIN DE JESUS: And your name, I’m sorry?
NIDIA: Nidia.
EDWIN DE JESUS: Nidia. Okay. Thank you very
much.
(END OF RECORDING)
The recording of the meeting involving Eli Kent, the Union’s
director of organizing, and business agent Jorge Roldan is as
follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ROLDAN: Good morning. My name is Jorge Roldan.
Can I get an application?
OFFICE WOMAN: Do you have HAZMAT and tanker
endorsement on your CDL?
ELI KENT: I got my HAZMAT—training, just regular
license. I don’t know what—
OFFICE WOMAN: We’re taking applications for CDL
drivers.
ELI KENT: Only?
OFFICE WOMAN: Only if—
ELI KENT: Any other positions are open for that?
OFFICE WOMAN: No here. A and B—
ELI KENT: Okay.
OFFICE WOMAN: —CDL, HAZMAT and tanker.
Come in and fill out an application.
ELI KENT: Okay. I—any time I can come back?
OFFICE WOMAN: Yeah, any time before 4:00.
ELI KENT: All right. We got—is it—or just for—
union members?
OFFICE WOMAN: Oh, every one.
ELI KENT: Oh yeah?
OFFICE WOMAN: Everyone, look at our ad. Yeah.
ELI KENT: Any time?
OFFICE WOMAN: Any time before 4:00.
ELI KENT: All right.
OFFICE WOMAN: Bring your license with you and your
social security card.
ELI KENT: Okay.
OFFICE WOMAN: And we’ll test you.
ELI KENT: Uh-huh.
OFFICE WOMAN: You’ll test right away so if you come
early and we have a guy here to test you we’ll be happy to
take—you have to be able to drive standard.
ELI KENT: Oh, stick shift, okay.
OFFICE WOMAN: Yeah.
ELI KENT: This guy, I mean, he’s got the licenses, he’s
got everything.
OFFICE WOMAN: You want to fill it out now? You got
it?
ELI KENT: No, I don’t have my license with me be-
cause I have to go back and bring it.
OFFICE WOMAN: Okay, go back and bring it—
ELI KENT: (Inaudible) also at the same time.
OFFICE WOMAN: Okay, go back, bring me your social,
fill out the app, we’ll have somebody test you. If I have a
driver here I’ll have somebody test you.
ELI KENT: Oh, okay.
OFFICE WOMAN: Okay?
ELI KENT: All right. Okay. I mean, that’s how you—
with everyone, though? They have to—you’ve got to
come with all your material?
OFFICE WOMAN: Um-hmm.
ELI KENT: All your licenses?
OFFICE WOMAN: Absolutely. How am I supposed to
know—
ELI KENT: And just make copy and give back; right?
OFFICE WOMAN: Yeah, I’m going to make a copy,
back and front and give it right back.
ELI KENT: Okay. Can I fill out an application for any
other positions you have?
OFFICE WOMAN: There’s nothing open right now.
ELI KENT: No, what about in the future?
OFFICE WOMAN: Absolutely, just look to see—we run
ads in the paper all the time.
ELI KENT: Okay. Then you won’t—you don’t keep
applications on file or anything?
OFFICE WOMAN: Yeah—no. I mean, I can—I can take
it if you would like to give it to me right now and I’ll keep
it on file but I’m not hiring for that.
ELI KENT: Yeah.
OFFICE WOMAN: For field technician if that’s what
you’re looking for.
ELI KENT: Okay.
OFFICE WOMAN: Okay?
ELI KENT: All right.
OFFICE WOMAN: I would be happy to take the applica-
tion and if we have a driver here take you out for test
drive.
ELI KENT: I’ll try to come back tomorrow then.
OFFICE WOMAN: Okay. Tomorrow’s Saturday.
ELI KENT: Oh.
OFFICE WOMAN: Monday.
ELI KENT: (Inaudible.)
(END OF RECORDING)
The recording of the conversation involving union business
agents Fabin Derewiecki and Guian Rivera is as follows:
GUIAN RIVERA: Hi, Good morning. How are you? We came
to apply for a job.
OFFICE WOMAN: For driver?
GUIAN RIVERA: Any—anything that you have available.
OFFICE WOMAN: —HAZMAT driver.
GUIAN RIVERA: There’s nothing else you got now for—what
about if I went to the temp company—you think I’ll be able to
get it from Lydia Rivera at the company—do you think I have a
chance there since I don’t have any (inaudible)?
OFFICE WOMAN: What we’re hiring right now is drivers.
GUIAN RIVERA: Drivers?
OFFICE WOMAN: (Inaudible).
GUIAN RIVERA: All right, I think I might be able to probably
to get a license ‘cause I’m union, I want—my purpose is to
organize the company.
OFFICE WOMAN: We’re not interested in (inaudible).
GUIAN RIVERA: Yeah? But your workers might be; right?
OFFICE WOMAN: No, we’re not—
GUIAN RIVERA: You’re not and because of that you’re not
hire me or something?
OFFICE WOMAN: No, (inaudible) is a social and a—
GUIAN RIVERA: If I have a—
OFFICE WOMAN: (Inaudible).
GUIAN RIVERA: All it has to be is CDL? Anything else you
have like—
OFFICE WOMAN: That’s all we’re hiring for right now.
ALLSTATE POWER VAC, INC. 11
GUIAN RIVERA: And probably I can get something
through—people; no? Or Lydia Rivera or something?
OFFICE WOMAN: I don’t know who Lydia Rivera is.
Guian Rivera: I think that—
OFFICE WOMAN: (Inaudible)—
GUIAN RIVERA: —they the one who—that refer people to
here so maybe I go there and apply or—
OFFICE WOMAN: You can try, I don’t even know anything
about—
GUIAN RIVERA: You think I can do that?
OFFICE WOMAN: You can—
GUIAN RIVERA: I will get—
OFFICE WOMAN: You’ve got a have—and a driver’s license.
GUIAN RIVERA: That’s all it takes?
OFFICE WOMAN: That’s it.
GUIAN RIVERA: All right, I appreciate your time. Thanks.
OFFICE WOMAN: (Inaudible.)
GUIAN RIVERA: Bye-bye.
OFFICE WOMAN: Bye-bye.
(END OF RECORDING)
As noted above, all of these people who applied for em-
ployment were union business agents and/or organizers. In the
case of Eli Kent, he was the Union’s director of organizing and
Derewiecki, in addition to being a business agent, had the job
of dispatcher, which means that he refers members to jobs as
they are called into the Union by contracting employers.
With respect to these “salts” there is evidence that they really
were not looking for employment. All of these people had full-
time jobs at the Union, either as business agents, organizers, or
dispatchers. In Eli Kent’s case, he was the Union’s director of
organizing and was then involved in an organizing campaign
involving companies in another industry. They were asked to
participate in this event on April 13 or a few days before and no
arrangements were made to have their job functions covered by
others in the event that they were hired. Indeed, Silva testified
that he did not expect that any would be hired. When they were
invited by the office person to submit applications for nondriver
jobs, accompanied by their social security cards and driver
licenses, they never followed up on this invitation and not one
made any further attempt to apply for employment with
Allstate.
I also note that as of April 13 when they applied for work,
the jobs then available required CDL licenses with hazmat en-
dorsements and not one of these people had those qualifica-
tions. Put simply, they were not qualified for the jobs adver-
tised and they did not apply for jobs for which they were quali-
fied, but which were not immediately available. (Although GC
Exh. 20 indicates that that there were four people hired as field
techs on April 17, 2007, including Jose Castillo and Angel
Rivera, the evidence and particularly the testimony of Castillo
and Rivera, indicates that April 17 was the starting date of their
training in New Jersey and that they had been interviewed and
offered employment before April 13.)
It is further noted that although some of these salts testified
that they were willing to work “for as long as it takes” to organ-
ize the Company, the testimony of Silva, who was responsible
for organizing this event, was that if they got jobs, it was in-
tended that they work only between 2 and 4 weeks. This was
because the Union was going to subsidize the salts for the dif-
ference between their normal pay and benefits as union em-
ployees and the pay and benefits they would receive as Allstate
employees. He testified that the Union could only afford to
subsidize these people for a short period of time.
Based on the evidence presented in this case, I conclude that
the allegations that the Company refused to offer employment
or consider for employment this group of people, has no merit
and should be dismissed.
D. Prohibition on Wearing Union Clothing and Using
Union Decals on Hardhats
On May 30, 2007, starting at about 5 a.m., Castillo and
Rivera, wearing union jackets, engaged in leafleting to incom-
ing employees at the Respondent’s Varick street facility. Be-
fore this date, Castillo and Rivera had kept their union member-
ship quiet and there is no evidence to show that the Company
was aware that they were union “salts.” There is also no credi-
ble evidence to establish that the Company was aware that the
other three persons selected for layoff (Jose Adames, Miguel
Bisono, and Victor Vasquez), were union supporters.
According to Rivera and Castillo, after they went into the
shop, they were told by Chris Baran that they could not wear
union T-shirts and jackets. Baran gave them shirts that had the
company name on them. Although Castillo went out to the
field on his regular assignment, Rivera, along with a number of
other field techs was assigned to the shop. (In this regard, the
evidence indicates that when field work is slow, the Company
has typically assigned field employees to do various tasks in the
shop such as cleaning, arranging tools, etc.)
Castillo testified that when he returned to the shop on May
30, he had a conversation with Glen Burke about wearing union
clothing and putting union decals on his hardhat. A recording
of this conversation is as follows:
You cannot have that jacket on.
Yes sir. Alright
You have defaced health and safety items, which we
have given to you. It is against company policy. I am
writing you up for that.
For what?
Well for occurrences of any of the following violations
because of its seriousness may result in immediate dis-
missal without warning. Willful violation of security or
safety rules or failing to observe safety rules or AllState
Power Vac safety practices, failure to wear required safety
equipment tampering with AllState equipment or safety
equipment, which you have done. You cannot do that be-
cause if something was to happen to you, these manholes,
they may look at that thin, the AllState Power Vac, they
may go to Local 78 and you can die.
Why?
Because it was taught to you in our health and safety
class.
Because it’s a sticker on the hardhat I will die?
You cannot have a sticker on the hardhat.
. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
You cannot have a sticker on the hardhat. . . . I am
writing you up and giving you a safety violation for this.
You cannot wear this stuff during working yours, you
cannot. If you take it off right now. . . .
Yeah I’ll take it off . . . no problem.
Just take it off and I won’t even write you—how,
how’s that? Take it off then.
. . . .
. . . . [Y]ou cannot wear this stuff during working
hours. You want to wear that jacket to and from work, be
my guest. Do I need to give you a sweatshirt to keep you
warm during work hours? I will give you one.
(Discussion of his size)
It’s a policy here. . . . Here’s what happens. If you
last here long enough, you can go through certain types of
training around here that you’ll be given stickers for. You
may go to certain plants that you’re allowed in and that
just interferes with what you may get down the line and it
cannot be on that hard hat because it’s false information.
We are not members of Local 78 here and that’s what
you’re doing. Do you understand what I’m saying?
I’m a member of Local 78
Well . . . we’re not.
Well I am.
Alllstate Power Vac is not.
I am.
Well that’s you. Allstate Power Vac is not
Alright.
And even if we were that still would not be allowed on
a hard hat. Understand what I’m saying?
All right.
Let me get you a hat. You can wear these to your
heart’s desire. All right my friend?
No problem.
Before and after hours, you can wear whatever the hell
you want around here.
All right. Anything else?
That’s it
All right cool. See you around man.
On June 1, 2007 the Company issued the following memo-
randum to its employees:
Effective immediately any authorized decals worn on com-
pany safety equipment including hardhats are not authorized.
Only training decals issued by our customer and company
certification can be worn. Violation of defacing and tamper-
ing with company safety equipment is covered under Allstate
Power Vac standards of conduct. Any question concerning
any work or safety rule, please see your manager for explana-
tion.
Rivera testified that on the morning of June 4, 2007, he was
told by management to take a union sticker off his hardhat and
that he could lose his job if he didn’t do so. In light of the
above, I have no doubt that this conversation occurred as de-
scribed by Rivera. Rivera received a notice of safety violation
for this incident.
With respect to the above, I conclude that the Respondent
violated Section 8(a)(1) of the Act. Absent special circum-
stances, prohibitions on employees from wearing union insignia
at work, violate the Act. Moreover, the burden of proof is on
the Employer to justify such a prohibition. Albertson’s, Inc.,
319 NLRB 93, 102 (1995); Mack’s Supermarkets, 288 NLRB
1082, 1092 (1988).
Burke testified that the placing of what were removable un-
ion decals on the company issued hardhats constituted a safety
issue. He opined that if an employee was hurt on the job, any
person who found him might be confused as to who the injured
man was or who he worked for. To me, this explanation simply
makes no sense and I fail to see how the placement of a union
decal on a hardhat could conceivably be construed as a safety
issue. (Presumably there would be other ways to identify the
person, such as the contents of his wallet.)
By the same token, the Company’s attempt to prohibit
Rivera and Castillo and other employees from wearing clothing
with union logos in the shop, coupled with threatened discharge
or discipline, is not justified. Even if such union clothing was
worn out in the field, the evidence is that when performing
work in the field, the employees, for the most part, wear either
full or partial protective clothing that would largely obscure
anything worn beneath. In short, in the absence of evidence
showing that the union insignia mocked or adversely portrayed
the Employer’s product, I conclude that the Respondent has not
demonstrated that prohibiting either the union decals on hard-
hats or the union logoed T-shirts, caps or jackets, was justified
by “special circumstances.” Cf. Noah’s New York Bagels, 324
NLRB 266, 275 (1997), and Pathmark Stores, Inc., 342 NLRB
378 (2004).
E. Other Events Between May 30 to June 4, 2007
Between May 30 and June 4, A. Rivera was involved in a
number of other incidents, some of which the General Counsels
allege to be unlawful conduct by the Employer.
Rivera testified that on May 30, while working in the shop,
he was told to first load and then unload large plastic drums on
a truck. He further states that he was then told to load and
unload these drums on two other occasions. The General
Counsels contend that this heavy and useless work was de-
signed to harass Rivera who had just declared himself as a un-
ion supporter. Burke, for his part, claims that this series of
transactions occurred because a customer kept changing its
mind about a job in the field.
The General Counsels also contend that the Respondent, in
order to harass Rivera had him dig, refill and then re-dig two
holes in the yard. In this regard, Baran testified that the Com-
pany had just ordered a new air-conditioning unit that was go-
ing to be placed in the yard outside the building and that he
wanted to build a barrier to prevent trucks from banging into it.
To this end, Baran states that he had Rivera dig the holes to put
some poles but that since Con Edison called in emergency jobs,
he told Rivera to cover the holes until the emergency jobs were
finished.
Rivera testified that later in the day, he answered his cell
phone and was told by Burke that he couldn’t use his cell phone
in the shop because there were chemicals there that could cause
an explosion. As a consequence, Burke took Rivera’s cell
phone and told him that he could retrieve it at the end of the
ALLSTATE POWER VAC, INC. 13
day. Burke concedes that he took away Rivera’s cell phone but
explains that because there are chemicals in the shop, the Com-
pany has a policy that requires employees to use what they call
“intrinsically safe phones,” which apparently are phones suffi-
ciently insulated to prevent sparking. While initially skeptical
of this assertion, I note that Rivera conceded that at the training
session he attended before commencing work, he was told that
cell phones could produce electrical discharges that could cause
explosions with the chemicals that the employees worked with.
On or about Thursday, May 31, Rivera was told by Baran not
to smoke and persisted until told to punch out and go home. He
received a warning for this. There seems to be some confusion
as to whether Rivera was smoking inside or outside the shop.
(In New York, it is illegal to smoke inside a workplace.) Casti-
llo testified that he witnessed the event and that Rivera was
smoking next to the time clock in the shop. Baran, on the other
hand, testified that Rivera was smoking in the yard and that he
told him to stop smoking and get back to work.
On June 4, Rivera arrived at work unshaven. He was told by
the Company’s regional safety manager, Kurtis Ross, that this
was a violation of the Company’s safety rules and Rivera was
suspended after stating that because he was working in the
shop, he didn’t have to shave. In this regard, the Company
does have a rule that required field workers to be clean shaven
so that a respirator will fit snugly on one’s face. Although
Rivera asserted that he didn’t have to be shaven because he was
assigned to the shop, the fact is that people assigned to the shop
may have to go out on emergency calls. Given that situation,
enforcing a rule that requires employees, even those assigned to
the shop, to be clean shaven is not unreasonable.
The General Counsels, in their brief allege only that the Em-
ployer violated the Act by making Rivera load and unload bar-
rels, making him dig holes, and temporarily taking away his
cell phone. They do not allege that the Respondent violated the
Act in relation to the smoking and the facial hair warnings.
One could easily conclude based in large measure on the fact
that the alleged illegal events occurred the day after Rivera
revealed that he was a union supporter that these actions were
motivated by antiunion considerations. On the other hand, the
Employer had explanations for each action, albeit reasons that
were not particularly persuasive to me.
Nevertheless, the fact is that the three charged incidents af-
fecting Rivera, all occurred on a single day and were not par-
ticularly onerous. Moreover, as I am going to conclude that the
Employer illegally discharged Rivera on June 4, 2007, the rem-
edy for that conduct will encompass any remedy that would
relate to this conduct. Given the somewhat ambiguous evi-
dence regarding the motivation for these relatively minor ac-
tions on May 30, I am not going to conclude that the Respon-
dent violated the Act in these respects.
F. The June 4 Layoffs and Discharges
On June 4, 2007, the Company sent identical letters to
Rivera, Castillo, Miguel Bisono, Victor Vasquez, and Jose
Adames. This read:
Due to a temporary reduction in the workforce your employ-
ment will terminate today, June 4, 2007. If you are enrolled
in our medical plan we will continue your coverage through
July 31, 2007, providing that you continue to remit your cur-
rent weekly portion of the premium. If you are not recalled
within the next two months, you may elect to continue your
coverage per the COBRA law.3
By June 4, Castillo and Rivera had been employed for about
1-1/2 months and Victor Vasquez had been employed for about
7 days. However, Miguel Bisono and Jose Adames had been
employed as field techs since 2005. In the context of this
Company, which has a high degree of turnover, Bisono and
Adames were long-term employees. And in this regard, Burke
testified that because the tech jobs are hard, dirty, and not par-
ticularly well paid, anyone who manages to last is highly val-
ued.
The Company argues that these layoffs were required be-
cause Con Ed, its largest customer, notified it that it was going
to suspend a certain job until the fall. The Company does not
assert that the individuals were laid off because of their job
performance. Simply put, the Respondent asserts that they
were laid off for lack of work and had Con Ed not given notice,
these employees would have continued working.
Miguel Bisono, Victor Vasquez, and Jose Adames were all
recalled to work on July 24, 2007. Rivera and Castillo were
not.
Although Burke asserted that he had received notice from
Con Ed about a week or two before June 4, 2007, there is noth-
ing in writing to corroborate this assertion and there was no
corroborating witness called by the Respondent to substantiate
this claim.4 Nor is there any evidence to show that the Com-
pany, prior to June 4, notified any employees, including Chris
Baran, that layoffs were either possible or immanent. In the
latter regard, I particularly note that Baran, as the operations
manager who was in charge of daily scheduling, had a job that
required that he know who was or was not going to be available
for work.
Burke concedes that during the entire 5-year period that he
has been the manager, there has never been a layoff. Thus,
notwithstanding the assertion that this particular Con Ed project
was postponed because of the summer’s hot weather, there is
nothing to show that similar layoffs had occurred during any
previous summers.
Moreover, the documentary evidence (GC Exh. 21) shows
that on June 12 there were five temporary workers assigned to
the Varick Street facility and that on June 14, there were three
temporary employees working out of this location. Thus, al-
though the Company may not have hired new permanent field
technicians to replace the people laid off on June 4, the evi-
dence shows that it brought in a number of people after that

3 It is noted that the note does not explain why there was as tempo-
rary reduction in work.
4 The Respondent offered into evidence an e-mail to Burke from
George Jacobi from Con Ed that was sent in 2008. This asserted that
there would be a postponement in June 2008 and that “just like the
prior years, we will be suspending the Transformer cleaning program
for the Months of June, July and August.” This document, which was
sent a year after the June 4, 2007 layoffs is not contemporaneous with
those layoffs and constitutes, in my opinion, nothing more than uncor-
roborated hearsay regarding the 2007 events.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
date. (Actually, the temporary workers came from New Jersey
and were employed by a related company that has the same
ownership as Allstate.)
Recalling that when the Union began its overt organizing
campaign at the facility on May 30, 2007, that Rivera and Cas-
tillo handed out leaflets during that morning, and the fact that
the layoffs took place only 4 days later, this strongly suggests
that the Company decided to engage in these layoffs in order to
get rid Rivera and Castillo and to put the fear of retaliation into
the remainder of the employees. Masland Industries, 311
NLRB 184 (1993); Detroit Paneling Systems, Inc., 330 NLRB
1170, 1171 (2000). Whether or not the Respondent was aware
that the other three employees were also involved in union
activities is irrelevant if, as concluded herein, the Company’s
motivation in making the decision to lay off employees on June
4 was to prevent its employees from joining or supporting the
Union. Professional Eye Care, 289 NLRB 1376, 1989–1990
(1988).
Based on the above, it is my conclusion that the layoffs of
Miguel Bisono, Victor Vasquez, and Jose Adames violated
Section 8(a)(1) and (3) of the Act. I also conclude that Rivera
and Castillo were discharged (not laid off), and that their dis-
charges violated Section 8(a)(1) and (3) of the Act.
G. The Discharge of Jose Adames on October 1, 2007
As noted above, Jose Adames was a relatively long-term
employee who worked as a field tech, a nonskilled laborers job.
Adames had been one of the five people laid off on June 4,
2007, and he testified that he participated in handing out union
literature after that date. He was recalled on July 24, 2007.
In the meantime, the Union managed to obtain authorization
cards from more employees and this is shown by the fact that
on August 30, 2007, it filed a representation petition. Also by
this time, and certainly no later than June 6, 2007, the Company
retained labor counsel.
On September 17, 2007, the Company and the Union entered
into a Stipulated Election Agreement and an election was
scheduled for October 5, 2007. In anticipation of the election,
company managers and supervisors were advised to be cautious
in dealing with the employees. Between June 4 and October 1,
2007, things seemed to be calm.
On September 7, 2007, Adames was given a company spon-
sored physical and was told that he had high blood pressure.
Adames was advised to see a doctor and on or about September
14, 2007, he presented a doctor’s note in conjunction with a
request for a 5-day leave of absence. This was approved by
Glen Burke and Adames received permission to take off from
September 17 to 21. Adames was scheduled to return to work
on Monday, September 24.
According to Adames, on Sunday, September 16 (the day be-
fore his scheduled time off), he received a phone call from the
Dominican Republic informing him that his grandmother had
died. Adames states that he had his wife call Burke on the
same day to explain the situation and he claims that Burke told
his wife that he could take as much time off as he needed.
(Burke denies this and Adames’ wife did not testify.) Accord-
ing to Adames, he purchased a ticket and left on Monday, Sep-
tember 17, 2007.
Adames testified that when he arrived in the Dominican Re-
public he found out that his grandmother had not died, but that
she was gravely ill. He states that he decided to stay in that
country until after the expected funeral. He did not return to
the United States until September 30, 2007.
Notwithstanding his testimony that he remained in telephone
contact with his wife during the time that he was in the Do-
minican Republic, neither Adames nor his wife initiated any
contact with the Company to report on his whereabouts or
when he expected to return.
On the other hand, Burke testified that after not hearing from
Adames, he called his home on September 23 and 26 in order to
ascertain when Adames was going to return to work. Burke
testified that in both instances, Adames’ wife said that she did
not know where Adames was or when he was returning to the
United States. She did not testify.
By letter dated September 25, 2007, Linda Attridge notified
Adames that: “[I]f you do not report to work by Thursday, Sep-
tember 27, 2007, we will terminate your emplacement as a
voluntary resignation.”
On Monday, October 1, 2007, Adames showed up at the
Company and was told that there was no work for him. On the
following day, Adames again appeared and tried to proffer a
death certificate that had been faxed to him from the Domini-
can Republic on October 2. (This stated that the date of death
was September 21.) This was rejected by Burke and Company
President Galasso who told Adames that he should submit the
death certificate to the human resources department in New
Jersey. At one point, Galasso told Adames that unless he left
the premises, he would call the police. Adames did not send
the death certificate to New Jersey and made no further efforts
to explain why he had not come back to work on September 24.
I suspect that Adames was caught up in a situation that he
didn’t fully understand and that his failure to notify the Com-
pany as to his whereabouts was a result of confusion on his
part. But, from the Company’s point of view, it had given
Adames permission to leave and expected him to return to work
on September 24. When it became apparent to Burke and At-
tridge that Adames could not be found and that the Company
could not ascertain when he would return to work, it was not
unreasonable for them to consider that Adames had quit and
that a replacement would have to be found. This was not in-
consistent with past practice and the record shows that another
employee, Michael Young, was also terminated in 2005, after
having failed to respond to Attrdige’s request to contact her
regarding his absence. (See GC Exh. 39.)
On the basis of this record, I cannot conclude that the dis-
charge of Adames was motivated by his union activities or as a
means to threaten other employees in anticipation of the elec-
tion that was scheduled to take place on October 5, 2007. Un-
fortunately for Adames, he failed to contact the Company re-
garding his inability to return to work on time and the Com-
pany, as it had done in the past, chose to terminate his employ-
ment for this reason. (Although no longer really relevant, this
conclusion would mean that Adames was not eligible to vote on
October 5, 2007.)
ALLSTATE POWER VAC, INC. 15
H. The Transformer Event on October 5 the Discharge
of Rafael Bisono and the Suspensions of William
Dominich and Hector Soler
The principal client of the Respondent is Con Ed. And one
of the principal jobs that the Respondent does for Con Ed is to
clean transformers. Transformers are electrical devices that
convert high voltage electricity to lower voltage that is trans-
mitted into homes and businesses. There are thousands of these
transformers throughout New York City and they are contained
in underground vaults accessed by manholes. They must be
cleaned from time to time and to this end, Con Ed contracts
with the Respondent, which sends crews, usually consisting of
a crew foreman, a vacuum truck operator and a field technician.
(The parties agree that although the crew foremen do some
work direction, they are not supervisors within the meaning of
Sec. 2(11) of the Act.)
Apart from being dirty work, there is a very remote, but real
possibility that upon removing the manhole cover and raising
the cage entrance to the vault, this could generate an electric
spark that can maim or kill an individual standing at the open
manhole or in the immediate vicinity. Because of this possibil-
ity, both Con Ed crews and Respondent’s crews who do this
type of work are issued and required to wear protective gear
that consists of hardhats, steel toed shoes, long-sleeved shirts
and pants, protective gloves, a fire retardant outer garment, and
safety glasses.5 Additionally, to protect the public, the crew is
required to put up cones and tape so as to cordon off the area
being accessed. These safety measures are regularly monitored
by both Con Ed people and by the Respondent’s managers.
On October 4, 2007 (the day before the election), Rafael Bi-
sono, William Dominich, and Hector Soler were assigned to
clean a transformer vault that was located a few blocks away
from the Company’s Varick Street facility. When they first
arrived at this location, the crew members all donned protective
clothing and started working. For some irrelevant reason, there
came a time during the morning when the crew went to check a
second vault located on the same block. Two of them opened
the vault and raised the cage above ground. Then all three
stood around the open manhole and did so without putting on
any protective gear or clothing. At that point, the three were
caught standing by the opened transformer vault by Chris Baran
who happened to be passing by and who took some photo-
graphs. The pictures show the three men standing around the

5 During the hearing, I suggested that either party could bring in an
expert witness to give testimony about the alleged dangers of doing
work in or around a transformer vault. Both sides had plenty of time to
do this and ultimately, the Respondent brought in Matthew McFarland,
a safety manager for Con Ed. He confirmed that Con Ed crews and
contractor crews are required to wear protective gear and clothing when
they opened a transformer vault because there was the danger of death
or serious burn injuries resulting from an electric spark. He testified
that such people are required to wear protective clothing and gear if
they are in the immediate vicinity of an opened vault even if they were
not going down into the vault to do cleaning. Upon being shown the
photographs taken by Baran, he opined that the three men depicted
were clearly breaching safety requirements, irrespective of why they
opened the vault or what they were going to do in it. In my opinion,
McFarland’s testimony was credible and convincing.
open vault without any protection. Upon taking the photo-
graphs, Baran retuned to the shop and reported the incident to
his superiors.6 Later in the day, the three men were told that
they were being suspended until further notice. According to
Bisono, he and Domenich were shown copies of the photo-
graphs by Al Guerrero when they returned to the shop.
Burke reported the incident to the Company’s regional safety
director, Kurtis Ross, and he conducted a set of interviews with
the three employees about a week after the election was held.
Soler was called in first, Dominich second, and Rafael Bisono
was called in last. According to Dominich, when Bisono came
out, he appeared to be very frustrated and didn’t want to talk.
Dominich and Soler were called back to work on October 15,
2007, having been suspended without pay since October 5. On
the other hand, Bisono was discharged. With respect to the
difference, the Company asserts that during the interview, Bi-
sono insisted that he had done nothing wrong and that he didn’t
need to be told how to do his job.
There is no question in my mind that the three employees
breached safety procedures by opening a transformer vault and
standing around it without protective gear or clothing. Unfor-
tunately for them, they were captured by a camera and therefore
had no means to deny that they had transgressed company pol-
icy. The fact is that by being careless, the three employees ran
a remote but real risk of serious injury or death. Therefore, the
Company’s discipline for this was eminently reasonable and
would have occurred in the absence of any union activity. The
suspensions of Dominich and Soler were, in my opinion, justi-
fied by the circumstances and cannot be said to have been mo-
tivated by union considerations.7 Similarly, while Bisono was
treated more harshly, he indicated to the Company that he was
not going to change his ways.
In short, I conclude that neither the suspensions of Dominich
and Soler, nor the discharge of Rafael Bisono were motivated
by antiunion considerations. I therefore recommend that these
allegations of the complaint be dismissed.
I. The Discharge of Miguel Bisono on
December 12, 2007
Miguel Bisono is the brother of Rafael Bisono and he began
his employment in January 2005 as a field technician. He testi-
fied that he first heard about the Union from Al Guerrero who
told him that Allstate needed a union. At some point, Miguel
Bisono attended a couple of union meetings and after his layoff
on June 4, 2007, he was active in supporting the Union. He
states that he obtained about 13 or 14 authorization cards from
other employees. Although the evidence doesn’t tend to show
that the Employer was aware of Miguel Bisono’s union activity

6 Baran testified that the reason he did not immediately confront
these men was because the election was to be held the next day and he
wanted to be extra cautious.
7 The Company’s records indicates that in the past and prior to any
union activity, other employees have received disciplinary warnings,
and in one case a suspension, for failing to wear protective gear. The
employees receiving such disciplines are Bill Kowalski, Narcizo
Ailaca, Francisco Amarante, Ruby Bratini, and Charles Gervin. The
records memorializing these disciplines are contained in GC Exhs. 56
and 59.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
before May 30, 2007, there is little doubt that it was aware that
he was a union supporter after June 4, 2007. As noted above,
Miguel Bisono was recalled to work on July 24, 2007.
On December 12, 2007, Miguel Bisono was discharged and
the Company asserts that the reason related only to an event
that occurred on December 6.
On December 6, 2007, Miguel Bisono, along with a group of
other employees, was assigned to work at a Con Ed generating
station in Queens, New York. At about 11 a.m. the employees
went on a break and Bisono testified that he had to relieve him-
self. He states that he returned to the truck, took an almost
empty bottle from under one of the seats, urinated into it, and
returned it to where it had been originally placed. Although
acknowledging that he was aware that there were bathroom
facilities at the Con Ed plant (no more than 90 to 100 feet
away), he nevertheless chose to pee in the bottle. He explains
that the bathroom was farther away than the truck and that he
had to unzip his protective outer garment. (Presumably, he had
to unzip the garment whether he went to the bathroom or to the
truck.)
In any event, it turns out that bottle happened to belong to
Melvin Brown and it was not quite empty when he left it under
the seat. And when Brown returned to the truck and attempted
to get a drink, he discovered that there was urine in his bottle
and he became very angry. Brown confronted Bisono and em-
ployees Cesar and Arroyo and stated that whoever did this was
“going to have a problem with me right now.” All three denied
that they had anything to do with Brown’s bottle. Brown then
reported the incident to Field Supervisor Michael Rademaker,
who in turn reported it to the office. Brown did not return to
the office in the same truck as the other employees.
According to Bisono, he first spoke to Guerrero when he re-
turned to the office and he asserts that he met with Al Guerrero
and Chris Baran. According to Bisono, when questioned about
the incident, he told Guerrero, in Spanish, that he was the one
who urinated in the bottle and that Guerrero told him not to say
anything and wait till the investigation was finished. In any
event, Bisono, through Guerrero told Baran that he did not
urinate in Melvin Brown’s bottle.
On the following day, Kurtis Ross arrived at the facility to
conduct an investigation. He conducted interviews with
Brown, Bisono, Arroyo, and Bratini. Although Ross did not
make recordings of these interviews, he did make extensive
notes.
When Bisono was interviewed, he denied to Ross that he
peed in the bottle. He also testified that during the meeting,
Baran asked if he was using his cell phone to record the meet-
ing and Ross said that if he was, that it didn’t matter.
When Bratini was interviewed, he was asked who urinated in
the bottle and Bratini fingered Bisono.
At the conclusion of the interviews, Bisono was told to go
home and call in to see if he was assigned to any work. He did
so on Monday, Tuesday, and Wednesday. He was not assigned
and on Wednesday, he was told by Guerrero that the Company
no longer needed him. On December 12, 2007, the Company
sent a letter to Bisono stating: “Effective December 12, 2007,
your position with Allstate . . . has been terminated for gross
misconduct. . . .”
The bottom line is that Bisono admittedly urinated into the
juice bottle of another employee who got upset and reported
this to management. When confronted with this by Chris Baran
and later by Kurtis Ross, Bisono denied that he had done so.
Notwithstanding his denials, Bratini told Ross that Bisono was
the culprit and Ross decided to discharge Bisono for this con-
duct.
Notwithstanding the General Counsel’s attempt to minimize
this incident, it is my opinion that Bisono, for whatever reason,
engaged in what can only be described as disgusting conduct
that outraged a fellow employee. Given these facts, I cannot
conclude that his discharge was motivated by union considera-
tions and I conclude that he was discharged for cause.
CONCLUSIONS OF LAW
1. By discharging Jose Castillo and Angel Rivera because of
their membership in Laborers International Union of North
America, Local 78, the Respondent has violated Section 8(a)(1)
and (3) of the Act.
2. By laying off Jose Adames, Miguel Bisono, and Victor
Vasquez in order to discourage employees from joining or sup-
porting Laborers International Union of North America, Local
78, the Respondent has violated Section 8(a)(1) and (3) of the
Act.
3. By prohibiting employees from wearing union decals on
their hardhats or wearing union T-shirts, hats, or jackets, the
Respondent has violated Section 8(a)(1) of the Act.
The Respondent has not violated the Act in any other manner
encompassed by the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I have concluded that the Respondent illegally laid off Jose
Adames, Miguel Bisono, and Victor Vasquez. However, as
they were recalled to work on July 24, 2007, I shall not require
the Respondent to reoffer them reinstatement. To the extent
that they suffered any loss of earnings during the period of their
layoffs, I shall recommend that they be made whole, for any
loss of earnings and other benefits, computed on a quarterly
basis from the date of their layoffs, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).8
In the case of Angel Rivera and Jose Castillo, I shall recom-
mend that no reinstatement order be issued. I also conclude that
neither would be entitled to any backpay. At the time these
individuals were hired, the intent of the Union, as expressed by
Silva, was that any “salts” hired would work only for a period
of 2 to 4 weeks. Both Rivera and Castillo were members of the
Union and both before and immediately after their discharges
on June 4, obtained other employment at substantially higher

8 According to Miguel Bisono, he was paid by the Union at $22 per
hour plus health insurance benefits during the period of his layoff. I
assume that the Union made the same arrangement with the other peo-
ple who were laid off.
ALLSTATE POWER VAC, INC. 17
wage rates. There is no doubt that neither man intended to
work for the Respondent on a permanent basis or even on an
extended temporary basis. And after they were discharged they
suffered no loss of earnings or benefits.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Allstate Power Vac, Inc., Brooklyn, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Discharging or laying off employees because of their
membership in or support for Laborers International Union of
North America, Local 78.
(b) Prohibiting employees from using or wearing union de-
cals on their hardhats or wearing union T-shirts, hats, or jack-
ets. However, this does not preclude the employer from requir-
ing its employees to wear appropriate protective clothing when
necessitated by their work assignments.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer make
whole Jose Adames, Miguel Bisono, and Victor Vasquez 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 this decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and discharges of
Jose Adames, Miguel Bisono, Victor Vasquez, Angel Rivera,
and Jose Castillo and within 3 days thereafter, notify them in
writing, that this has been done and that the layoffs will not be
used against them in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Brooklyn, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, or sold the business or
the facilities involved herein, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respon-
dents at any time since May 30, 2007.
(e) 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 inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. August 11, 2008
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
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge or layoff employees because of their
membership or support for Laborers International Union of
North America, Local 7or any other labor organization.
WE WILL NOT prohibit our employees from using or wearing
union decals on their hardhats or wearing union T-shirts, hats,
or jackets. However, this does not preclude the employer from
requiring employees to wear appropriate protective clothing,
including long-sleeved shirts, when necessitated by their work
assignments.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the rights guaranteed to them by
Section 7 of the Act.
WE WILL make whole Jose Adames, Miguel Bisono, and Vic-
tor Vasquez, for any loss of earnings they may have suffered as
a result of the discrimination against them.
WE WILL remove from our files any reference to the unlawful
layoffs and discharges of Jose Adames, Miguel Bisono, Victor
Vasquez, Angel Rivera, and Jose Castillo and notify them in
writing that this has been done and that these actions will not be
used against them in any way.
ALLSTATE POWER VAC, INC.