Baker Concrete Construction, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 10, 2003

12-CA-022027 (N.L.R.B. Feb. 10, 2003)

JD(ATL)–14–03
Miami, FL

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

BAKER CONCRETE CONSTRUCTION, INC.

and
SOUTH FLORIDA CARPENTERS REGIONAL
COUNCIL, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-
CIO
Case 12–CA–22027

John F. King, Esq., for the General Counsel.
Andrew S. Hament and A. Anthony Giovanoli, Esqs., for the
Respondent.
George S. Aude, Esq., for the Charging Party.

DECISION

Statement of the Case

George Carson II, Administrative Law Judge. This case was tried in Miami, Florida, on
December 4 and 5, 2002. The charge, filed on January 18, 2002, was amended on February 25,
April 24, May 31, and June 25, 2002. The complaint issued on June 27, 2002. The complaint,
as amended at the hearing, alleges that the Respondent violated Section 8(a)(1) of the National
Labor Relations Act by interrogating and threatening employees and violated Section 8(a)(1)
and (3) of the Act by laying off and/or discharging six employees because of their protected
concerted and union activities. The Respondent’s answer admits that it discharged the six
employees but denies that it violated the Act. I find that the evidence does not establish that the
Respondent violated the Act.

On the entire record,1 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following:

Findings of Fact

The Respondent, Baker Concrete Construction, Inc., the Company, is a corporation
engaged in the building and construction industry as a general contractor at various locations
including its jobsite at the Miami International Airport, Miami, Florida. During the past 12 months,
the Company purchased and received at its Miami jobsite goods and materials valued in excess
of $50,000 directly from points located outside the State of Florida. The Company admits, and I
find and conclude, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

The Respondent admits, and I find and conclude, that South Florida Carpenters
Regional Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, the
1 General Counsel’s Exhibit 2, submitted after the close of the hearing pursuant to my order at
the hearing, is hereby received.

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Union, is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Overview

The case involves the termination of six alleged discriminates from the Company’s
jobsite at the Miami International Airport. General Superintendent Larry Mitchell was in
charge of all work at the Miami International Airport. Work is performed on the site inside
the airport perimeter and also in an area outside the airport perimeter that is referred to as the
yard. Keith Kelly, who was classified as a superintendent, reported to Mitchell. General
Foreman Jose Estrada, like Kelly, reported directly to Mitchell.

All of the six alleged discriminates were hired in mid-December 2001, and all of them
were terminated on January 4, 2002.2 The Company does not give employees a formal morning
break period. On or about December 20 or 21, employee Marta DeLeon, who was a security
employee and who was not terminated, spoke at lunch break with a group of employees that
included five of the six alleged discriminatees about seeking a formal 15 minute morning break.
She stated that she would do so at a safety meeting that was to be held on December 28 and
asked for their support. On December 28, after Project Safety Manager John Williams made
his presentation regarding safety, Superintendent Keith Kelly asked if there were any questions.
Marta DeLeon asked about a break. A number of employees nodded approval, raised their
hands in a show of support, or murmured. Kelly responded to Marta DeLeon. Testimony varies
regarding what he said. There is also conflicting testimony relating the signing of a list by those
employees who desired a formal 15 minute break.

The sixth alleged discriminatee, Wilder DeLeon, was not present in the group on
December 20 or 21, nor was he present at the safety meeting. Although Wilder DeLeon and
Marta DeLeon are husband and wife, marital status is not sought on the company’s employment
application and neither disclosed this fact. When not stating their full names, this decision will
refer to Wilder DeLeon as W. DeLeon and to Marta DeLeon as M. DeLeon.

The Company admits that it discharged the alleged discriminatees and contends that it
did so because of their inability to perform the work they were assigned. It denies that they were
discharged because of union activity or protected concerted activity.

B. Facts

The Company hires by word of mouth. Alleged discriminatees Oscar Cabrera and Carlos
Dinarte learned that the Company was going to begin work at Miami International Airport from
Rene Ramos. Cabrera knew Ramos when they both worked for the Company on a job at the
Fort Lauderdale Airport. General Foreman Estrada had been a foreman at that jobsite
before coming to the Miami International Airport in November 2001 as General
Foreman, but he did not know Cabrera. Ramos had been Dinarte’s foreman at a different
company. Alleged discriminatees Carlos Montero and Wilder DeLeon both heard of the job from
friends. Alleged discriminatee Cantalicio Bustillo did not testify regarding how he heard about
the job. Alleged discriminatee Juan Jose Lopez-Garcia did not appear as a witness.

2 All dates in December are in 2001 and all dates in January are in 2002 unless otherwise
indicated.

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Oscar Cabrera and Jose Montero had worked as carpenters for 10 years and had been
members of the Union for 5 years when they were hired. Cantalicio Bustillo testified that he had
worked as a carpenter for five years and had been a member of the Union for four or five years.
Despite this, he applied for a job as a laborer. Wilder DeLeon became a carpenter in 1990 and
joined the Union in 1999. The record does not reflect whether Cabrera and Montero were
certified as journeymen. W. DeLeon testified that he was “certified,” but he did not go through
the Union’s apprenticeship program. Carlos Dinarte was not a member of the Union. He had
worked for the Company on a job at the Dolphin Mall for over a year, from late 1999 until March
2001. There is no evidence that alleged discriminatee Lopez-Garcia was a union member.

Both General Superintendent Mitchell and General Foreman Estrada had
formerly been members of a Carpenters Union. Mitchell had been a member of a local
in Fort Worth, Texas, for five to six years in the 1970s. Estrada had been a member of
a local in Orlando, Florida, and worked on a union job at Cape Canaveral in 1998. He
has a Carpenters Union sticker on the back of his hardhat.

Dale Bretting, an engineer, coordinated the Company’s hiring process. General
Superintendent Larry Mitchell explained that the Company would determine its
manpower needs and then canvass the applicants who would gather at the jobsite.
“They would raise their hands and tell us they were carpenters or laborers, whichever
one we was hiring.” Bretting would read over the applications and fill the available
positions. According to Mitchell, the Company would then “put them to work, and give
them a try, see how they worked.” Estrada reiterated this, explaining that they were
“just hiring people who was showing up …. We did not know their quality of work.”

On the day that Cabrera applied, he filled out paperwork and took a drug test. The
following day he attended a security and safety briefing. He began work the next day. On the
day Dinarte applied, he filled out paperwork and took a drug test. He did not mention a safety or
security briefing and recalls beginning work the following day. Montero recalled beginning work
the day that he applied. Neither Bustillo nor Wilder DeLeon were questioned regarding how long
after they applied they actually began work. The applications of all alleged discriminatees,
except that of Bustillo, are dated December 13. Bustillo’s application is dated December 11.

General Foreman Estrada explained that the construction at the Miami International
Airport was complicated; there were slopes and ramps that were “different than most buildings.”
Employees were dealing with different thicknesses of slabs and depths of beams. The carpentry
work was “not square, it's on an angle.”

At least a week before January 4, Estrada informed Mitchell that he had some
carpenters that he needed to get rid of because they were not able to perform the carpentry
work needed on the job and that he “was not satisfied with their work.” According to Mitchell,
Estrada did not “like doing his work two or three times. He likes it done right and get away from
it.” Estrada identified the employees he wanted to release and Mitchell told him that he had to
keep them even if that meant assigning them laborers’ jobs, “because it would take too long to
get other people in to replace them.” Estrada also noted that Dale Bretting said that he did not
have time to take the employees off the site. General Superintendent Mitchell confirmed that he
told Estrada that “we had to wait till we could get other people in before we could let anybody
go,” and it was upon Mitchell’s order that the employees were actually terminated. Mitchell
normally meets with his foremen in the morning, just as work is beginning. Although neither
Estrada nor Mitchell was able to place the exact date or time of their conversation, Estrada
placed it at least a week before the terminations.

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Employees were not given a formal morning break, but did have a formal lunch break. At
lunch on December 20 or 21, a group of employees that included all alleged discriminatees,
except for Wilder DeLeon who was working in the yard, engaged in a discussion relating to a
morning break. Although each alleged discriminatee placed himself in that discussion, each
omitted the name of at least one of the other discriminatees as being present and Dinarte
named employee Ivo Saldivar as being present. Other employees who were not named were
also present. According to employee Marta DeLeon, the issue of a morning break arose
because the employees wanted “to eat something in the morning.” Although M. DeLeon, who
was a security employee and not a member of the Carpenters Union, recalls stating “the Union
will give it [a 15 minute break] to them,” no employee corroborated that testimony. All witnesses
who testified regarding this conversation confirmed that M. DeLeon stated that she intended to
raise the issue of a morning break at a safety meeting scheduled for December 28 and that she
asked if they would support her. All committed to do so. Although Dinarte testified that he
observed General Foreman Estrada walk by, no other participant in the discussion mentioned
seeing him. Even if he did walk by, there is no probative evidence that Estrada or any other
supervisor heard or was aware of the nature of the employees’ discussion.

On December 28, after Project Safety Manager John Williams completed his safety
presentation, Superintendent Keith Kelly asked if there were any questions. M. DeLeon asked
Kelly “if he was going to give us a 15 minute break” and, according to her, Kelly said, “Bullshit.”
M. DeLeon recalls that “all the workers shook their heads supporting me that they wanted the
fifteen minutes.” According to M. DeLeon, Kelly then directed General Foreman Jose Estrada
“to get a piece of paper, and write down the name[s] of the people that wanted a 15 minute
break.” She testified that she followed Estrada and asked him why he had to write down the
names. Estrada purportedly replied, “[B]ecause I think they want to know who wants the fifteen
minutes so they can fire them.” M. DeLeon testified that Kelly motioned with his index finger for
her to approach him. She did so. According to M. DeLeon, Kelly stated to her, in English, “[F]uck
the Union. The 15-minute break is coming from the fucking Union. This is all bullshit. And listen,
Friday I have good layoff for these people, for no come back no more definite.” When repeating
this testimony, M. DeLeon phrased the layoff comment as “Friday I give you good layoff,
definite,” and added that he told her to “stay away all these people, because if you no stay away
these people, you have trouble. Friday Layoff. Definite.” In a pretrial affidavit, DeLeon did not
mention Kelly’s purported direction that Estrada make a list and she placed the conversation
with Estrada as occurring when she was returning to work. Despite purportedly hearing Estrada
refer to firing, M. DeLeon claims that she signed the list. She observed others, more than five,
sign the list, but she did not name any of the alleged discriminatees as having signed the list.

Marta DeLeon testified that, at the point she had the foregoing converstion with Kelly,
she liked him and believed that he made the foregoing statement to her because he wanted a
closer relationship with her. At some point after the employees were terminated on January 4,
M. DeLeon asked Kelly why the employees had been laid off, and he replied that he “had gotten
rid of that shit and that there were other people waiting in the yard for work.” Also, after the
layoff, M. DeLeon testified that Kelly made unwanted sexual advances towards her. She
reported this to Estrada who reported Kelly’s conduct to Safety Manager John Williams.
Thereafter, management officials from Company headquarters in Ohio became involved. M.
DeLeon was terminated on February 27, 2002. Kelly’s employment ceased in May 2002, and
the record does not reflect the circumstances of his leaving. M. DeLeon has filed charges with
the Equal Employment Opportunity Commission relating to her termination. There is no
allegation relating to discrimination against M. DeLeon because of her actions on December 28.

Bustillo recalls that Kelly responded to M. DeLeon stating that “they would consider it in
the future … [and] they could carry a bag with something … and eat, and just continue working

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and eat, that he had no objection to that, but that, you know, there were no set time for breaks.”
Bustillo observed that 15 or 20 employees raised their hands “as a sign of support” when M.
DeLeon asked about the 15-minute break. He recalled that, as the meeting ended, “they wrote
several names” on a list and that he assumed his name was on the list. Although Bustillo
recalled that the individual making the list was a “leadman foreman” named Jose, he twice
testified specifically that it was not General Foreman Jose Estrada. Estrada was present as the
Respondent’s representative at counsel’s table when Bustillo testified, and Bustillo knew who
Estrada was. Estrada denied having anything to do with a list, and Bustillo’s testimony is
consistent with that denial. Bustillo also recalled M. DeLeon asking the unidentified leadman
foreman “what was the list,” and that the individual responded in Spanish. The official interpreter
at the hearing translated Bustillo’s testimony of that response as, “[T]hat's for the people that
are asking for the break.” Counsel for the Charging Party stated that Bustillo had used the
Spanish words “se va” in his answer which, he asserted, would translate “are going” or “are
going to be going.” Regardless of what the unidentified leadman foreman said, there is no
allegation or evidence that he was a supervisor.

Montero recalled that Kelly stated that he “didn't like the idea of the fifteen minutes,” but
that he then said that “everyone that wants the fifteen minutes, sign this list of paper that they
pulled out there.” The paper was “laying on top of something that was there.” Montero recalls no
supervisors standing near the list. He signed the list and, when doing so, observed about 10
names on the list. He did not observe anyone else as they were signing the list.

Dinarte attributed the safety briefing to Kelly. Notwithstanding that misidentification,
when Kelly asked if there were any questions, he recalls that M. DeLeon asked “if we can get
the fifteen minutes, all of the workers need it.” He observed that 12 to 15 people raised their
hands in support of the request including Montero, Cabrera, Bustillo and Ivo Saldivar, who is not
alleged as a discriminatee and who was not terminated. In testimony uncorroborated by any
other witness, Dinarte asserted that Marta DeLeon “showed her shirt,” apparently by unzipping
the jacket she was wearing, and displaying a shirt bearing the Carpenters Union logo.
According to Dinarte, Kelly said, “Fuck [the] Union” and “Bullshit Union.” He called M. DeLeon
aside and announced that that “the meeting was finished and that everyone go back to work.”
Dinarte observed Kelly speaking with M. DeLeon on the side “where they have the blueprints.”
As Dinarte was about to start working, he testified that Estrada approached him carrying a pad
and asked if he wanted the 15 minutes. Dinarte replied that he did and he “signed that [pad].”

Cabrera recalls that, when M. DeLeon spoke, Montero, Bustillo, Dinarte, Lopez-
Garcia, he, and other employees, a total of 10 to 12, supported her by raising their
hands. According to Cabrera, Kelly thereafter said “a bad word.” Upon being asked
what the bad word was he answered, ”something like fuck the Union, something like
that.” Cabrera acknowledged that, in a pretrial affidavit, when describing Kelly’s
response he stated, "Keith [Kelly] said that they would not be able to give us the fifteen
minute breaks. He said that maybe in the future we might get fifteen minute breaks, but
at the moment, no. Keith was speaking in English. … [An interpreter] translated into
Spanish. Keith said that the meeting was over." Cabrera testified “that other things …
are the truth,” noting that the interpreter would not translate a bad word and thereby
implicitly suggesting that the affidavit did not address anything he heard in English that
was not translated. When asked whether Kelly said anything else, Cabrera answered,
“No, only he just said to go back to work.” Thus, Cabrera, like Dinarte, did not testify
that Kelly said anything about a list at the meeting. Cabrera testified that Estrada,
although not saying anything, was going around with a list “to sign for about the 15
minutes” and that he, Cabrera, signed it. When he did so, he observed about 10 or 12
names on the list but did not look to see who had signed.

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The Company presented employees Albert Camps, Jose Meza, Jose Gomez, and Mario
Monge, all of whom were present at the meeting on December 28. None of these employees
heard Kelly use any improper language, observed any employees raising their hands in support
of M. DeLeon’s comments, or knew anything about any list. Gomez recalled that, when M.
DeLeon raised the issue of a break, there was a “murmur” but no one said anything.

M. DeLeon did not testify to wearing a shirt with a union logo nor did she
attribute any statement relating to the Union to Kelly in the meeting. No witness other
than Dinarte testified to M. DeLeon “showing her shirt,” and I do not credit that testimony.
Cabrera, who testified through an interpreter, thought that the bad word he attributed to Kelly
was ”something like fuck the Union, something like that.” No witnesses other than Dinarte
and Cabrera attributed any statement relating to the Union being made in the meeting by Kelly. I
do not credit their testimony in that regard. Whether Kelly reacted to the request for a
15-minute break by saying “bullshit” is immaterial. No threat is alleged to have
accompanied the word.

M. DeLeon was the only witness who testified that Kelly directed Estrada to
make a list of employees who wanted a 15-minute break. Montero recalls that Kelly
pulled out a piece of paper and invited any who wanted to sign to do so. Bustillo placed
the list in the hands of a leadman foreman, not Estrada. He overheard M. DeLeon
speak with that individual. M. DeLeon’s pretrial affidavit makes no mention of Kelly’s
purported direction to Estrada and places her alleged conversation with him as occurring when
she was returning to work, which presumably would have been after her conversation with Kelly.
That is consistent with Dinarte’s testimony that Kelly called M. DeLeon aside just before
dismissing the meeting. Estrada denied threatening employees with discharge or layoff or
having anything to do with any list. Bustillo overheard the conversation between M. DeLeon
and the leadman foreman named Jose. Although there is some question regarding the
translation of what the leadman foreman, who was not Estrada, said, M. DeLeon testified to
only one conversation relating to the list, the purported conversation in which she attributed the
“so they can fire them” statement to Estrada. M. DeLeon, although attributing the discharge
threat to Estrada, claimed that she signed the list. I find it incomprehensible that M. DeLeon
would sign a list immediately after having supposedly being told that employees who signed
were going to be fired. I do not credit M. DeLeon’s uncorroborated testimony that Estrada was
directed to make a list and that she spoke to him. I find that she spoke to the leadman foreman
and that Bustillo overheard that conversation. I find further that she did not perceive whatever
comment the leadman foreman made to be a threat since she signed the list. I credit Estrada
that he had nothing to do with any list.

In crediting Estrada’s denial that he had anything to do with a list, I do not credit
Dinarte’s testimony that Estrada approached him and asked whether he wanted to sign
the list. I have little confidence in Dinarte’s recollection of observations to which no
other employee testified or his identification of individuals as reflected in his attribution
of the presentation of the safety briefing to Kelly rather than Safety Manager Williams.
Similarly, I do not credit the testimony of Cabrera that it was Estrada, who Cabrera
testified did not speak, who was carrying the list that he signed.

On January 4, a week after the foregoing meeting, the alleged discriminatees
were terminated. Estrada recalled no employee asking why he was being terminated.
Only Dinarte contradicts this testimony, testifying that he did ask Estrada why he was
being let go and was told to shut up. Whether the transaction occurred as reported by
Dinarte is not material. Bustillo recalls that Lopez-Garcia, who was acting as translator

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for the employees, asked and “the answer that they gave him was that there was a
reduction in personnel.” Montero asked Richard Wendell, his immediate foreman, why
he was being let go and Wendell replied, “we're letting go of people, but we're going to
give jobs within two weeks.” As Montero and the others who had been separated were
being processed out, Montero encountered Kelly and asked why he was being
terminated. Kelly replied that “he had no control over that.” Wilder DeLeon, who was
working in the yard, was told by his foreman, John Laibang, he had to let W. DeLeon
and “the other guy” go “because they told me that we had too many people.”

Estrada explained why he had recommended to Mitchell that each of the alleged
discriminatees be terminated.

Estrada recommended that Bustillo, who had applied and been hired as a
laborer, be terminated because he was “very slow at moving, and he would talk to
people too much.” Estrada did not recall the names of the employees with whom he
saw Bustillo talking. Although not hired as a carpenter, Bustillo testified that, on an
occasion upon which Estrada directed him to help with decking, that he “took
advantage of the opportunity to let him [Estrada] know that I [Bustillo] was a carpenter.
So I pulled out my union card and I showed it to him.” When asked whether Estrada
reacted in any way when he did this, Bustillo answered, “He ignored it.”

Oscar Cabrera was initially assigned do deck work. Decking involves setting
aluminum on top of the scaffold and then cutting plywood to fit and placing it on top of
the aluminum. Estrada observed that Cabrera could not do the work, and he assigned him
to setting beam forms and building scaffolds. Setting beam forms requires constructing
forms with the proper dimensions as set by engineering and then placing kickers
properly “so that the forms will hold the pressure of the concrete.” Estrada recalled
speaking with Cabrera several times about his work. He noted one occasion upon
which he told him the measurement for a beam side and then observed that Cabrera
“was counting the lines on the tape measure. To me, that is not a carpenter at all.”

Cabrera testified that, after December 28, Estrada would not speak to him, that
there was “a dramatic, great change with respect to me” in that Estrada would ignore
him. On cross examination, Cabrera admitted that, prior to December 28, he spoke with
Estrada only “occasionally” and, after the 28th, Estrada “would hardly speak to me.”
Cabrera denied that Estrada had criticized his work before December 28 but that, after
December 28, Estrada would speak in plurals, stating “all these carpenters are no
good.” Regarding criticism of Cabrera’s work, Dinarte initially denied hearing Estrada
tell Cabrera “that the work he was doing was no good and reassigned him to another
job.” On redirect examination, Dinarte effectively admitted Estrada’s criticism of
Cabrera when he testified that Cabrera’s reassignment occurred after December 28. On
January 3, Cabrera was injured on the job. Thereafter he filed a Workers Compensation
claim. That claim has been settled. The settlement states: "Employee has alleged that
his employment was terminated on January 4th, 2002 by Employer, due to employee's
allegation of an injury occurring during the course of his employment." The settlement
specifically exempts any potential liability resulting from this proceeding from the scope
of the settlement.

Estrada stated that Dinarte was not able to satisfy him with his carpentry, that he
was not accurate with his measurements and did not “put the kickers right on the
forms.” Dinarte denied having his work or pace of work criticized, but did admit that
Estrada reassigned him to the job of “pulling jacks.” From Dinarte’s description, a jack

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is critical to the construction process since it is used “to hold the walls.” According to
Dinarte, pulling jacks is a two person laborers’ job, and he protested the assignment,
stating that he was a carpenter. He recalls that Estrada told him to shut up because “he
was my boss.” Thereafter, Dinarte testified that he heard Estrada saying that “all the
carpenters were … shit carpenters.” Dinarte placed his reassignment
contemporaneously with his signing the list favoring a 15-minute break. The
reassignment is not alleged as an unfair labor practice. At some point after his
reassignment, Dinarte began working with Cabrera. On January 3, Dinarte gave a
written statement supporting Cabrera’s version of his accident. On January 4, Dinarte
testified that he tripped and fell, injuring his leg and back. Cabrera was a witness.
Dinarte reported his fall to Estrada who, according to Dinarte, ignored him and
assigned him to work with a foreman identified as Pablo who assigned him light duty for
the remainder of the day. Dinarte was terminated that afternoon and filed a Workers
Compensation claim alleging that he was terminated for reporting an accident.

Estrada testified that Carlos Montero was unable to perform decking work and
that he, therefore, limited Montero to scaffolding work for the duration of his
employment. Montero effectively acknowledged that Estrada was dissatisfied with his
performance, testifying that he showed Estrada his union card in an effort to establish
that he was competent because Estrada “thought that we didn't know how to work, that
we didn't know what we were doing, and I knew what I was doing.” When asked if
Montero reacted to the presentation of his union card, Montero replied, “No, because …
he just stayed very calm.” In later testimony regarding his work, Montero explained, “A
lot of carpenters have different ways of working. I have my ways, and it's like that.”

Regarding Wilder DeLeon, Estrada recalls that he gave him “certain measurements
for him to cut a form,” and that when he checked upon his progress he observed
“another carpenter showing him the same thing that I showed him.” Estrada asked W.
DeLeon why he had sought assistance and he explained that he “did not know what he
was doing.” W. DeLeon denied that Estrada criticized his work, noting that Estrada “had
a bad attitude with the others, but not with me.” Notwithstanding the alleged absence of
criticism, W. DeLeon acknowledged that after working for Estrada for one day, “the first
day inside the field,” he thereafter worked in the yard under Foreman John Laibang,
referred to as “Papa John,” constructing beam bottoms. Although General
Superintendent Mitchell acknowledged that it would be unusual for Estrada to
recommend the termination of an employee that he did not directly supervise, Estrada
explained that he recommended that W. DeLeon be terminated because the job he was
doing in the yard was temporary, that the “carpenters that were in the yard [building
beam bottoms], they were going to get transferred … to work in the field [i.e. inside the
perimeter]” under Estrada’s supervision.

DeLeon testified that, on an unspecified date sometime after being assigned to
the yard, he wore a T-shirt, presumably a union T-shirt, and that Foreman Laibang
asked if he was a member of the Union. W. DeLeon replied affirmatively and also
showed him his union card. According to W. DeLeon, Foreman Laibang turned away
from him and said “fuck the Union.” Although Foreman Laibang had turned away, W.
DeLeon testified that he continued to speak, saying to Foreman Laibang that “we all
wanted” a 15 minute break and that Foreman Laibang responded that “we were getting
paid $19.50, and if he see anybody eating before lunchtime, he was going to fire
anybody.” Although W. DeLeon testified that he used the word “we,” the record does
not establish that he was speaking on behalf or anyone other than himself or that there
was any basis upon which Foreman Laibang could conclude that W. DeLeon was

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speaking on behalf of anyone other than himself.

Although Lopez-Garcia did not testify, Estrada was questioned regarding the
reason for his termination. He explained that Lopez-Garcia “would talk to people too
much,” was very slow, and “was not able to do carpentry work.”

Cabrera had previously been employed at the Company’s Fort Lauderdale Airport
jobsite, and Dinarte had been employed at the Dolphin Mall. Estrada explained that, at Fort
Lauderdale, the decking was “from precast joist to precast joist, … all the same dimensions.” At
the Miami International Airport, “the depth of the beams was different, … [the carpenters] would
have to be using the tape measure all day long with different measurements, … not just … one
measurement all the time.” General Superintendent Mitchell concurred that the work at the
Miami International Airport was more complicated. He noted that, of the three jobs about which
there was testimony, the Dolphin Mall, where employee Dinarte had been employed, was the
“easiest, because it's slab on grade” and that the Fort Lauderdale job “was basically beam
bottoms, beam sides, and the precaster took it from there.”

A total of eight employees were terminated on January 4, 2002, the six alleged
discriminatees, Enrique Avila who was withdrawn from the complaint at the conclusion of the
General Counsel’s case, and Anthony E. Coffee who documentary evidence reflects was
discharged for substandard work.

Two new carpenters and a laborer were hired on January 7 and three additional
carpenters were hired on January 14. Estrada acknowledged that it was possible to process
an employee onto the job in a single day; however, the testimony of Cabrera establishes that
the normal procedure was completion of paperwork and a drug test on one day and attending a
safety and security briefing the next day. The week ending January 4 included New Year’s Day,
which was observed as a holiday. Counsel for the General Counsel argues that the
foregoing hire dates undercut the testimony that the terminations should be delayed a
week in order to obtain replacements. I find no significance in the failure of the Company to
have succeeded in replacing all of these employees in a single week. The General Counsel’s
argument might well have merit if the protected conduct had occurred on January 4, but
the evidence establishes that the protectred conduct was on December 28. Even if I
were to accept the General Counsel’s argument that there was “a delay … [in the
terminations] to cover up the true reasons” for them, the time lapse between the
precipitating event and the terminations would be the same. Thus, whether the
Company terminated eight employees because of substandard work or, in the case of
the six alleged discriminatees, because of conduct protected by the Act, the decision
was made on or before December 28. The fact that the Company did not succeed in
immediately hiring a full complement of replacement workers proves nothing.

B. Analysis and Concluding Findings

1. The Section 8(a)(1) allegations.

The complaint alleges that General Foreman Estrada, on or about December 28,
interrogated employees about their union and/or concerted, protected activities and threatened
employees with discharge in retaliation for their union and/or concerted, protected activities.
There is no evidence of any interrogation. The only witness who attributed a threat of discharge
to Estrada was Marta DeLeon and, as discussed above, I have not credited that testimony. I
shall recommend that these allegations be dismissed.

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Superintendent Kelly is alleged to have, on December 28, interrogated employees,
threatened employees with layoff in retaliation for their union and/or concerted, protected
activities, and threatened employees with unspecified reprisals in retaliation for their engaging in
union and/or concerted, protected activities. There is no evidence of any interrogation by Kelly.
The remaining allegations are dependent upon the testimony of M. DeLeon. According to M.
DeLeon, Kelly stated to her, in English, “[F]uck the Union. The 15-minute break is coming from
the fucking Union. This is all bullshit. And listen, Friday I have good layoff for these people, for
no come back no more definite.” In repeating this latter comment, M. DeLeon testified that
Kelly said “Friday I give you good layoff, definite,” and added “stay away all these people,
because if you no stay away these people, you have trouble. Friday. Layoff. Definite.” Counsel
for the Respondent argues that I should not credit the foregoing testimony. Counsel for the
Charging Party argues that I should draw an adverse inference from the failure of the
Respondent to present Kelly; however, it is inappropriate to make an adverse inference on the
basis of absence of testimony by a person no longer employed by a Respondent. Lancaster-
Fairfield Community Hospital, 303 NLRB 238 at fn. 1 (1991). M. DeLeon’s testimony that she
had a conversation with Kelly is unrebutted.

Counsel for the General Counsel and the Charging Party urge that I find that Kelly stated
that he was going to lay off the employees who wanted a 15 minute break the following Friday
and that he “confided” his intentions to M. DeLeon because he desired to have a closer
relationship with her. The record simply does not support this argument. Nothing was confided.
Kelly was upset with M. DeLeon, the employee who had raised the issue of a break. He
immediately confronted her, cursed the Union to which he incorrectly attributed the request for a
break which would potentially complicate a definite layoff planned for the following Friday, and
told M. DeLeon, the only person who spoke at the meeting, to “stay away” from “these people”
or she would “have trouble.”

When restating her recollection of Kelly’s comment regarding a layoff, M. DeLeon
omitted any reference to “these people” and specifically repeated, “Friday. Layoff. Definite.”
There were approximately 40 employees at the meeting and, depending upon the witness,
between 10 and 25 of them, from one quarter to over half of them, indicated support for M.
DeLeon’s suggestion. If I were to credit M. DeLeon’s first version of Kelly’s comments, I would
have to assume that Kelly was somehow able to identify those employees who expressed
support for M. DeLeon, either by nodding, hand raising, or murmuring. Kelly’s purported
identification of “these people” would have to have included well more that the five alleged
discriminatees who were at the meeting. Kelly had no authority over employees supervised by
Estrada. His comments were made within two or three minutes of M. DeLeon’s request. His
affirmative identification of a date, “Friday. Layoff. Definite,” belies a spontaneous reaction to
anything that occurred at the meeting. Kelly referred to a definite layoff on Friday. Estrada had
informed Mitchell at least a week prior to January 4 that he needed to terminate carpenters who
were unable to perform work to his satisfaction. Mitchell told him that he would have to keep
them for a while. Mitchell met with his foremen each morning. Thus, consistent with M.
DeLeon’s second version of his remarks, Kelly cursed the Union, to which he incorrectly
attributed the request for the 15-minute break for potentially complicating a planned, i.e.
“definite,” layoff that had been scheduled for the following Friday. I do not credit M. DeLeon’s
initial testimony that Kelly referred to “these people” in regard to the layoff. Kelly did not, in a
two-minute interval, calculate a scheme to retain M. DeLeon and delay laying off various
employees that he had somehow identified at the meeting. Kelly spontaneously called M.
DeLeon, the only employee who had said anything at the meeting forward, cursed the Union,
informed M. DeLeon that there was a planned layoff the following Friday, and told M. DeLeon to
“stay away” from “these people” or she would “have trouble.” I shall recommend that the
allegation relating to a threat of layoff be dismissed.

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M. DeLeon’s testimony that Kelly told her she should “stay away all these people,
because if you no stay away these people, you have trouble” is uncontradicted. The complaint
alleges that Kelly “threatened employees with unspecified reprisals for engaging in union and/or
concerted, protected activities.” The generalized reference to “you have trouble” did not indicate
in any way that the Respondent rather than other employees or union officials would be the
source of the unspecified “trouble.” I find the statement “much too vague to support the finding
of a threat.” Northern Wire Corp., 291 NLRB 727, 729 (1988). There is no evidence of any
reprisal against M. DeLeon, and her termination is not alleged as a violation. I shall recommend
that this allegation be dismissed.

Regarding the admonition to “stay away … [from] these people,” Counsel for the General
Counsel argues that “warning employees to stay away from others who engage in protected
concerted activities” violates the Act. Counsel neglects to point out that no such violation is
alleged in the complaint. No motion to amend has been made. I shall not find a violation
regarding unalleged conduct on the basis of M. DeLeon’s less than reliable testimony. See
Gibson Discount Center, 191 NLRB 622 at fn. 3 (1971). In the comment as reported by M.
DeLeon, the reference to “these people” is ambiguous. In context it is unclear whether it related
to the unidentified employees who had supported her or to unidentified union officials. Although
not alleged as a violation, the comment, with its ambiguity, does establish animus towards both
union and protected concerted activity.

The complaint further alleges that, in mid-January, Kelly again threatened employees
with discharge for engaging in union and/or protected concerted activity. The General Counsel
argues that this allegation is established by M. DeLeon’s testimony that, after the layoff, she
asked Kelly why the employees had been laid off and he replied that he “had gotten rid of that
shit and that there were other people waiting in the yard for work.” That answer contains
no threat. It simply states that the Respondent “got rid of” employees with no mention of the
union or protected concerted activity. I shall recommend that this allegation be dismissed.

2. The Discharges

The analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), is applicable in dual or mixed motive cases after the General Counsel has
established employee union activity, employer knowledge of that activity, animus towards such
activity, and adverse action taken against those involved in that activity. Once this showing has
been made, the burden shifts to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct.

Superintendent Kelly’s statement that he believed the request for a break was “coming
from the Union,” although incorrect, followed by his advice that M. DeLeon “stay away … [from]
these people” establishes animus. Alleged discriminatees Bustillo and Montero had shown their
union cards to General Foreman Estrada, and all were present at the December 28 meeting.
Wilder DeLeon, although not present at the December 28 meeting, had identified himself as a
union member to his supervisor. All three were terminated. Thus, the General Counsel has
established a prima facie case that the Respondent discharged those employees because of
their union activity in violation of Section 8(a)(3) of the Act.

Although finding that the General Counsel established the elements necessary to
establish a prima facie case, thus avoiding dismissal of that aspect of the allegations, the case
established is tenuous. There is no evidence that any of the foregoing employees engaged in
any union activity other than Bustillo, Montero, and Wilder DeLeon identifying themselves as

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union members. There is no evidence that Dinarte was a union member. Contrary to a
statement the brief of Counsel for the General Counsel, there is absolutely no evidence that
Dinarte showed a union card to Estrada. Cabrera never identified himself as a union member.
Estrada, a former union member himself, did not react in any manner when Bustillo and
Montero identified themselves as union members. Although Wilder DeLeon testified that
Foreman Laibang did react to his showing him his union card, he did not allege any change in
his terms and conditions of his employment following his revelation of union membership. No
conduct that violated Section 8(a)(1) of the Act or discrimination contemporaneous with the
foregoing disclosures of union affiliation by these three employees is established by the
evidence or alleged in the complaint.

The record also establishes protected concerted activity. Employee activity is concerted
when it is "engaged in with or on the authority of other employees." Meyers Industries, 268
NLRB 493, 497 (1984). A respondent violates Section 8(a)(1) of the Act if, having knowledge of
employee concerted activity, a respondent takes adverse employment action that is "motivated
by the employee's protected concerted activity." Ibid. M. DeLeon requested a break and
between one quarter and one half of the employees present indicated support for the request
by nodding, raising their hands, murmuring, or signing a list. Logic suggests that no adverse
action was predicated upon visual identification. Had this been so, well more than the alleged
discriminatees would have been terminated including employee Ivo Saldivar, whom Dinarte
identified as being in the discussion on December 21 and whom Dinarte asserted raised his
hand at the meeting. Thus, I shall address the purported list about which five of the General
Counsel’s witnesses testified.

If I assume that a list of employees who wanted the 15-minute break was made, I would,
consistent with the testimony of Montero and Cabrera, have to find that the list contained
between 10 and 12 names. Wilder DeLeon did not sign the list. Montero signed a list that was
not circulated by anyone but contained 10 names, presumably 11 names after he signed it.
Cabrera and Dinarte testified that they signed the list. Although I have not credited their
testimony that Estrada had a list, I shall assume that they did sign a list. Bustillo believes his
name was written down. The General Counsel did not establish that Lopez-Garcia, the alleged
discriminatee who did not testify, or Avila and Coffee, the other employees who were
terminated, signed the list. Thus, so far as the record shows, only four of the eight employees
terminated signed the list and thereby identifed themselves as supporting M. DeLeon’s
request. Even if Lopez-Garcia, Avila, and Coffee did sign, that list would have included the
names of three employees who were not terminated, assuming a list of 10, or five employees
who were not terminated, assuming a list of 12. One of those employees was M. DeLeon, the
only employee who spoke at the meeting, who signed the list, and who was not terminated.

Counsel for the General Counsel argues that the Respondent did not terminate M.
DeLeon because to have discharged the only spokesperson “would have been indefensible.”
Counsel also notes that such caution would avoid a potential sexual harassment claim. M.
DeLeon places Kelley’s unwanted advances as occurring after January 4, thus there is no basis
for the latter argument. The only evidence of any animus is that expressed by Kelly who did not
supervise any of the alleged discriminates and who was not involved in the decision to terminate
them. When Montera spoke to Kelly immediately after his termination, Kelly told him that “he
had no control over that.” The only reaction to the employees’ concerted activity established
by probative evidence is Kelly’s speaking to M. DeLeon, the spokesperson. Counsel for the
General Counsel and Charging Party argue that six competent employees, one of whom was
not even at the meeting, were terminated for doing nothing more than supporting the request of
the only employee who spoke by nodding their heads, raising their hands, or signing a list
which, if it existed, contained at least 10 names. I do not agree.

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The construction at Miami International Airport was complicated, involving slopes and
ramps; it was “different than most buildings.” Montero testified, “A lot of carpenters have
different ways of working. I have my ways, and it's like that.” Mitchell explained that
Estrada did not “like doing his work two or three times. He likes it done right ….” I credit
Estrada that he was dissatisfied with the job performance of each of the alleged discriminatees.
After working inside the perimeter, W. DeLeon was transferred to the yard before identifying
himself as member of the Union. Montero, having been criticized by Estrada, sought to establish
his competence by showing Estrada his union card. Dinarte acknowledges hearing Estrada
specifically criticize and reassign Cabrera, but asserts this was after December 28. Cabrera
testified that Estrada did not talk to him after December 28. If that were true, the criticism would
have occurred prior to that date. Although Dinarte, who was not a union member, testified that
his assignment to “pulling jacks” was contemporaneous with his signing the list requesting the
15-minute break, the foregoing assignment is not alleged to have been in retaliation for
engaging in protected concerted activity. Even assuming that the “different ways of working” to
which Montero referred were competent, the individual that the employees had to satisfy was
General Foreman Estrada. The record establishes that, in performing work in “different ways,”
their way rather than Estrada’s way, the alleged discriminatees did not satisfy him.

Whether viewed as union activity or protected concerted activity, the crux of this case is
whether the adverse employment action taken by the Respondent against the six alleged
discriminatees was motivated by their protected conduct. On the basis of this record, I simply
cannot find that there is persuasive evidence that any protected conduct in which the alleged
discriminatees engaged related in any way, much less was a motivating factor, in the
terminations that occurred on January 4. The Respondent’s spontaneous reaction to the
protected concerted activity was to speak to the employee spokesperson. At that time, the
Respondent had already decided to terminate employees who could not perform with the skill
necessary for the construction at the Miami International Airport. There is no probative evidence
that the Respondent either identified or selected the employees that it terminated on the basis
of their union membership or protected concerted activity. Although finding that the General
Counsel established a prima facie case with regard to the allegations of discrimination because
of union activity and protected concerted activity, I further find that the Respondent has rebutted
that case and established that it would have terminated the alleged discriminatees in the
absence of any union or protected concerted activity. In view of the foregoing and the entire
record, I shall recommend that the Section 8(a)(1) and (3) allegations relating to the layoff
and/or discharge of the alleged discriminatees be dismissed.

Conclusions of Law
The Respondent has not engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.

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ORDER
The complaint is dismissed.

Dated, Washington, D.C. February 10, 2003

_____________________
George Carson II
Administrative Law Judge