Bates Paving & Sealing, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 2016

364 NLRB No. 46 (N.L.R.B. 2016)

364 NLRB No. 46
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.
Bates Paving & Sealing, Inc. and Juan Gaxiola. Case
28–CA–142681
July 14, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On July 20, 2015, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The Re-
spondent and the General Counsel each filed exceptions
and a brief in support, an answering brief, and a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
We agree with the judge, for the reasons she stated,
that the Respondent violated Section 8(a)(1) of the Act
by discharging employee Juan Gaxiola.3 However, for
the reasons discussed below, we disagree with the
judge’s findings that employee Juan Marana was not
discharged and that employee Rafael Gastelum was law-
fully discharged. Accordingly, we find that the Re-
spondent violated Section 8(a)(1) by discharging Marana
and Gastelum.
I. RELEVANT FACTS
The Respondent is an asphalt paving company based
out of Tucson, Arizona. Robert Bates is the owner and

1 The Respondent excepts to the judge’s ruling authorizing the Gen-
eral Counsel to amend the complaint to include an allegation that the
Respondent unlawfully terminated Juan Marana. There is no merit in
this argument. Although this allegation was added at the hearing on
April 21, 2015, it is closely related to the charge timely filed on De-
cember 11, 2014, alleging that the Respondent unlawfully discharged
Juan Gaxiola and Rafael Gastelum for engaging in the same type of
protected conduct. See Redd-I, Inc., 290 NLRB 1115, 1118 (1988).
2 The Respondent and the General Counsel have implicitly excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
We do not, however, rely on the judge’s citation to Jerry Ryce Builders,
352 NLRB 1262 (2008).
3 In affirming the judge, we note that Grand Canyon University, 359
NLRB No. 164 (2013), cited by the judge, was subsequently affirmed
by the Board in a decision reported at 362 NLRB No. 13 (2015).
president of the Respondent. In April 2014,4 Bates hired
Robert Padilla as a supervisor. Shortly thereafter, some
employees, including Gaxiola, Marana, and Gastelum,
began expressing concerns amongst themselves about
Padilla’s abusive treatment, which included yelling, curs-
ing, calling the employees “stupid Mexicans” and “fuck-
ing wetbacks,” and challenging employees to fistfights.
On Friday, September 19, approximately seven of the
Respondent’s employees, including Gaxiola, Marana,
and Gastelum, were assigned to work on a paving job at
the University of Arizona’s Tech Park. That day, the
employees voiced concerns to Padilla that the ground
was damp in some areas and therefore unsuitable for
paving. Padilla dismissed these concerns, telling them to
pave over the damp areas. Padilla yelled and cursed at
the crew on this project, as he had done on previous pro-
jects. The employees agreed that they would speak to
Bates about Padilla’s behavior the following Monday.
As the employees were leaving for the day, however,
Gaxiola got into an argument with Padilla, after which
Gaxiola asked for an immediate meeting with Bates. All
of the Tech Park crew, except for Gastelum, attended that
meeting on Friday afternoon. Gastelum had already left
work by the time Gaxiola asked for the impromptu meet-
ing and did not learn of it until later.
During the meeting with Bates, which Padilla also at-
tended, the employees discussed the damp conditions at
the Tech Park job and complained about Padilla’s mis-
treatment. Gaxiola pleaded with Bates to stop Padilla’s
yelling and cursing. Marana also criticized Padilla’s
treatment of the crew. Padilla admitted yelling at the
crew, but claimed it was due to the loud machinery.
Bates told the crew that he would talk to Padilla, but said
they looked like “little girls complaining” and should
listen to Padilla, as he was their supervisor.
As found by the judge, on September 22, the Respond-
ent fired Gaxiola for this protected concerted activity.
After he was fired, some of the employees, including
Gastelum, discussed Gaxiola’s termination and wondered
who would be next.
On September 23, Bates held another meeting with the
employees. At the hearing, Bates admitted that he called
the meeting to respond generally to the complaints raised
at the September 19 meeting and particularly to criticize
the poor workmanship of Marana and Gastelum. Alt-
hough Bates did not mention Marana and Gastelum by
name during the meeting, he looked at them as he faulted
their work at the Tech Park site. Marana then responded
by telling Bates that the problems at the jobsite arose
because of Padilla’s yelling and that Bates should not

4 Unless otherwise noted, all dates are in 2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
yell at him. In reply, Bates told Marana, “You mother
fucker, get the fuck out of here, out of my company right
now. You’re fired. Get out of here. Go. Go. Get the
fuck out of here. I don’t want you here. Go.” Despite
this direction, Marana did not leave the meeting. Bates
then asked if any other employee wanted to say anything,
and two moved their hands to indicate “no.” Once Bates
calmed down, Gastelum told Bates that he and Padilla
should have known that the damp conditions would af-
fect the quality of their work. Bates responded with sar-
casm. After the meeting, Bates informed Marana that he
was not fired. Marana continued working the next day
for the Respondent.
On October 1, Gastelum was written up for causing
damage to a truck. He was given a warning stating that
he would be fired for the next safety violation. On Octo-
ber 10, Padilla discharged Gastelum for poor raking on a
ramp.5 Gastelum testified that another employee, Juan
Dupont, admitted to raking the part of the ramp that Pa-
dilla criticized that day.6 There is no evidence that
Dupont was disciplined. Instead, according to Gastelum,
Padilla directed Dupont to rerake the area.
Regarding his disciplinary practices, Padilla stated
that, absent a serious infraction, he typically gave two to
three verbal warnings, followed by two to three written
warnings, and only then discharged the employee.
II. ANALYSIS
A. Discharge of Marana
The judge dismissed the allegation that the Respondent
unlawfully discharged Marana. Although the judge
found that Marana was engaged in protected concerted
activity and that it was clear “that Marana understood, at
least for a brief time period, that he was fired and told to
leave the workplace,” she concluded that he was not ac-
tually discharged because he “suffered no actual harm,
and his ‘firing’ was cleared up soon after the September
23 meeting ended.” We disagree.
The Board uses an objective standard to determine if
an employee has been discharged. See, e.g., Grosvenor
Resort, 336 NLRB 613, 617–618 (2001); Ridgeway
Trucking Co., 243 NLRB 1048, 1048–1049 (1979). In
some cases, the circumstances may be ambiguous, but
there was no ambiguity in what Bates said to Marana:
Bates told Marana he was fired. That suffices to meet
the General Counsel’s burden of proving an adverse em-

5 The Respondent disciplined all its employees, including Gastelum,
for poor raking in 2009. The Respondent also disciplined Gastelum for
damaging company property in 2007, 2008, and 2009. The Respondent
discharged him for the 2009 incident of damaging company property.
The Respondent subsequently rehired Gastelum in April 2014.
6 The judge did not specifically address this testimony, but found
Gastelum to be “a highly credible witness.”
ployment action. Contrary to the judge, what happened
subsequent to this action—i.e., that Marana remained at
the September 23 meeting, that shortly after the meeting
Bates told him that he was not fired, and that he suffered
no actual harm and returned to work the next day—do
not show that an unlawful discharge never took place.
These facts demonstrate only that the discharge was re-
versed after a short while and thus bear on the appropri-
ate relief here. As explained below, we award Marana
no make-whole remedy.
Discharge is the “capital punishment” of employment.
An employer cannot avoid Board sanction simply by
reversing the discharge before an employee suffers fi-
nancial costs. The message has been sent that the em-
ployer is willing to take this extreme action and the em-
ployee victim is likely to understand that a “change of
heart” may not come so quickly, if at all, if he again en-
gages in protected concerted activity. In this particular
case, that message is underscored by the contemporane-
ous unlawful discharge of Gaxiola a day earlier for voic-
ing the same protected concerted protests as Marana
about supervision and the problems at the Tech Park
jobsite. Having found that Marana was discharged and
that the discharge was a direct response to his concerted
protected activity, we conclude that the Respondent dis-
charged Marana in violation of Section 8(a)(1).7

7 See Georgia Hosiery Mills, 207 NLRB 781 (1973), where the
Board found that a discharge violated the Act even though the dis-
charge was revoked within an hour. Contrary to the judge, we find that
this case is not distinguishable on the ground that Marana’s discharge
was revoked in less time and that he suffered no actual harm. As
Georgia Hosiery Mills makes clear, a discharge motivated by animus
towards protected activity is unlawful regardless of its duration. Fur-
ther, as we have stated, the issue of actual harm resulting from the
discharge relates only to the appropriate remedy for the violation found,
not to whether there was a violation.
The Respondent does not argue that it repudiated the discharge un-
der the standard articulated in Passavant Memorial Area Hospital, 237
NLRB 138 (1978). We note, however, that even if the Respondent had
attempted to rely on Passavant, it clearly failed to meet the standard for
repudiation set forth in that case.
We affirm the judge’s finding that Bates’ September 23 statements
to Marana independently constituted an unlawful threat directed at all
of the employees present. We note that “[t]o disregard this violation
would effectively privilege unlawful statements—which are inde-
pendently coercive—when the respondent contemporaneously gives
effects to its unlawful words.” TPA, Inc., 337 NLRB 282, 284 (2001).
In finding this violation, we do not rely on the judge’s citation to Sta-
tion Casinos, LLC, 358 NLRB 1556 (2012), because that case was
vacated by NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). We also
note that, prior to the issuance of Noel Canning, the United States Court
of Appeals for the Eighth Circuit enforced the Board’s order
in Relco Locomotives, also cited by the judge, and there is no question
regarding the validity of the court’s judgment in that case. See 358
NLRB 298 (2012), enfd. 734 F.3d 764 (8th Cir. 2013).
BATES PAVING & SEALING, INC. 3
B. Discharge of Gastelum
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), the Board applies a
burden-shifting analysis to determine whether an em-
ployer’s discharge of an employee was unlawfully moti-
vated and in violation of the Act. The judge found that
the General Counsel failed to meet his initial Wright Line
burden and, accordingly, dismissed the allegation that the
Respondent unlawfully discharged Gastelum. Further,
she found that even if the General Counsel had met the
initial burden, the Respondent met its rebuttal burden of
proving that it would have discharged Gastelum even in
the absence of protected concerted activity. For the rea-
sons that follow, we disagree and find that the Respond-
ent’s discharge of Gastelum violated Section 8(a)(1).
First, we disagree with the judge’s assessment that
Gastelum’s protected concerted activity was “arguable.”
Gastelum and his coworkers discussed Padilla’s abusive
conduct and, on September 19, made plans to talk to
Bates about it. At the September 23 meeting, Gastelum
continued that action by challenging Bates’ account of
who was at fault for the poor work at the Tech Park site.
At the time Gastelum spoke, Marana had just been fired,
and Gastelum’s statement would have the clear effect of
defending Marana, himself, and his coworkers, and
aligning himself with Marana’s comments and those
Gaxiola expressed at the September 19 meeting. Con-
certed activity directed toward rude, belligerent, and
overbearing behavior by a supervisor that directly affects
employees’ work constitutes protected activity under the
Act. See, e.g., Pier Sixty, LLC, 362 NLRB No. 59, slip
op. at 2, 23 (2015). Employees, including Gastelum, also
discussed Gaxiola’s termination and expressed concern
about who would be next. Such conduct similarly consti-
tutes protected concerted activity See, e.g., Hoodview
Vending Co., 362 NLRB No. 81, slip op. at 1 fn.1 (2015),
reaffirming and incorporating by reference 359 NLRB
No. 36 (2012). For these reasons, we find that the Gen-
eral Counsel clearly met his burden to establish that
Gastelum engaged in protected concerted activity.
Second, contrary to the judge, we find that the General
Counsel met his burden to show that the Respondent
knew of Gastelum’s protected concerted activity. Given
the content and the overall context of Gastelum’s Sep-
tember 23 comments, we find that Bates would have
linked those comments to the group comments made on
September 19. As a result, Bates, who believed that the
September 23 meeting was his chance to respond to the
September 19 comments, would have assumed, correctly,
that Gastelum was acting in concert with the group of
employees who criticized Padilla’s abusive behavior and
disputed who was at fault for the Tech Park paving prob-
lems. Bates also clearly linked Marana and Gastelum,
singling those two out for criticism on September 23.
Finally, the timing of Gastelum’s discharge and the fail-
ure of the Respondent to follow its regular disciplinary
practice, as discussed below, support our finding that the
General Counsel established the Respondent’s
knowledge of the protected concerted activity. See
Coastal Sunbelt Produce, 362 NLRB No. 126, slip op. at
2 (2015) (“knowledge of union activity may be estab-
lished by circumstantial evidence from which a reasona-
ble inference of knowledge may be drawn”).
Third, we find that the General Counsel provided am-
ple evidence of the Respondent’s animus toward the em-
ployees’ protected concerted activity.8 When the em-
ployees met with Bates on September 19 to ask him to
improve their working conditions, the Respondent re-
sponded by deriding the employees and then firing
Gaxiola. When Marana challenged Bates’ version of
what went wrong at the Tech Park project and criticized
Padilla’s abuse during the September 23 meeting, Bates
fired him and thereby threatened the other employees
present, including Gastelum. These contemporaneous
unfair labor practices clearly support a finding of animus.
See Lucky Cab Co., 360 NLRB No. 43, slip op. at 4
(2014).
Further, the timing of Gastelum’s discharge—only
about 2½ weeks after he spoke up at the September 23
meeting—is also indicative of animus. See e.g., The
Sheraton Anchorage, 363 NLRB No. 6 (2015) (finding
that an employee’s discharge, which occurred 2 months
after giving testimony “substantially adverse” to his em-
ployer, suggests that the motivation behind his termina-
tion was his protected activity—his testimony). Contrary

8 The judge found that the General Counsel failed to meet his initial
burden of proving animus by the Respondent in discharging Gastelum
because “[n]otably and significantly,” Gastelum did not attend the
September 19 meeting where employees first criticized Padilla, and his
remarks at the September 23 meeting did not mention Padilla’s poor
supervision. But, as shown above, at the September 23 meeting
Gastelum defended Marana after Marana criticized Padilla and he
(Gastelum) criticized Padilla’s (and Bates’) judgment in going forward
with the Tech Park paving despite the damp ground – criticism that was
met with extreme hostility by Bates who summarily fired Marana.
Accordingly, it is of little moment that Gastelum did not also attend the
earlier meeting.
Contrary to the suggestion of the judge, “proving that an employee’s
protected activity was a motivating factor in the employer’s action
does not require the General Counsel to make some additional showing
of particularized motivating animus towards the employee’s own pro-
tected activity or to further demonstrate some additional, undefined
‘nexus’ between the employee’s protected activity and the adverse
action.” Libertyville Toyota, 360 NLRB No. 141, slip op. at 4 fn. 10
(2014), enfd. 801 F.3d 767 (7th Cir. 2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
to the judge, we think it more likely that the gap simply
reflected a delay in the Respondent coming up with a
pretext for the discharge. See United Parcel Service, 340
NLRB 776, 777 fn. 10 (2003) (citing Naomi Knitting
Plant, 328 NLRB 1279, 1282–1283 fn. 18 (1999) (find-
ing that a 6-month gap between protected activity and
discharge was not too long because “[a]n employer might
wait for a pretextual opportunity to discipline an employ-
ee for engaging in protected activity.”)).
Finally, we find that the Respondent failed to meet its
rebuttal burden and that its discharge of Gastelum for the
poor raking incident on October 10 was a pretext. The
discharge was both a departure from established discipli-
nary practice and disparate treatment. The Respondent
did not give Gastelum any written warnings for poor
raking, as would be expected based on its progressive
discipline practices.9 Moreover, the discharge for poor
raking contrasts sharply with the apparent lack of disci-
pline for coworker Dupont, who was simply directed to
rerake the area he had previously failed to rake properly
at the same jobsite that day.
In sum, based on factors of contemporaneous unfair
labor practices, timing, the failure to follow an estab-
lished progressive disciplinary practice, disparate treat-
ment, and pretext, we find that the General Counsel
made a strong showing of discriminatory motivation for
Gastelum’s discharge. Inasmuch as the Respondent’s
asserted justification for the discharge was a pretext, it
necessarily failed to meet its Wright Line rebuttal burden
of showing that it would have discharged Gastelum even
in the absence of his protected concerted activity.10 Even
assuming, arguendo, that the Respondent actually relied
on a legitimate concern about Gastelum’s poor raking,
given the strength of the General Counsel’s case, we
would find that the Respondent failed to meet its sub-
stantial burden of proving that it would have taken the
extreme action of firing Gastelum, as opposed to some
lesser corrective action. See Bally’s Atlantic City, 355
NLRB 1319, 1321 (2010) (“[where] the General Counsel
makes out a strong showing of discriminatory motiva-
tion, the respondent’s rebuttal burden is substantial”),

9 This deviation from the Respondent’s disciplinary practice is also
indicative of animus. See, e.g., Santa Fe Tortilla Co., 360 NLRB No.
130, slip op. at 4 (2014).
10 In finding that the Respondent met this burden, the judge empha-
sized Gastelum’s prior disciplinary record, including not only the writ-
ten warning for the safety incident on October 1, but also disciplinary
actions taken in 2007 to 2009, 5 years prior to Gastelum’s rehire.
There is no evidence that the Respondent relied on this record when
discharging Gastelum on October 10 or that his poor raking was a
safety violation warranting discipline based on the October 1 warning.
To the contrary, Padilla testified only that Gastelum was discharged for
poor raking.
enfd. 646 F.3d 929 (D.C. Cir. 2011); see also Acme Bus
Corp., 357 NLRB 902, 904 (2011) (finding that, due to
the strength of the General Counsel’s showing of dis-
crimination, the respondent’s rebuttal burden was sub-
stantial).
Accordingly, we conclude that the Respondent’s dis-
charge of Gastelum violated Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusions of
Law:
1. Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act
when it threatened employees with discharge on Septem-
ber 23.
3. Respondent violated Section 8(a)(1) of the Act
when it discharged Gaxiola on September 22.
4. Respondent violated Section 8(a)(1) of the Act
when it discharged Marana on September 23.
5. Respondent violated Section 8(a)(1) of the Act
when it discharged Gastelum on October 10.
6. By engaging in the unlawful conduct set forth
above, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and Section 2(2), (6), and (7) of the Act.
AMENDED REMEDY
In accordance with our decision in AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016), we shall modify
the judge’s recommended tax compensation and Social
Security reporting remedy. Additionally, we shall order
the Respondent to offer Gastelum reinstatement11 and to
make him whole for any losses he may have suffered in
the same manner as described for Gaxiola in the judge’s
remedy section, as amended in this Decision.
ORDER
The Respondent, Bates Paving & Sealing, Inc., Tuc-
son, Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge if they en-
gage in protected concerted activities.
(b) Discharging employees because they engage in
protected concerted activity.

11 The General Counsel has not sought any make-whole remedy for
Marana, conceding that he was effectively reinstated after the Septem-
ber 23 meeting and suffered no loss of earnings or other benefits.
We shall modify the judge’s recommended Order and substitute a
new Notice to reflect these remedial changes.
BATES PAVING & SEALING, INC. 5
(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.
(a) Within 14 days of the date of the Board’s Order,
offer Juan Gaxiola and Rafael Gastelum full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(b) Make Juan Gaxiola and Rafael Gastelum whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Compensate Juan Gaxiola and Rafael Gastelum for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and file with the Regional Director
for Region 28, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
(d) Within 14 days from the date of the Board’s Or-
der, remove from its files any reference to the unlawful
discharges, and within 3 days thereafter, notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Tucson, Arizona, the attached notice
marked “Appendix.”12 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including

12 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.”
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since September 22, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. July 14, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, 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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with discharge if you engage in
protected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of this Order,
offer Juan Gaxiola and Rafael Gastelum full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Juan Gaxiola and Rafael Gastelum
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest.
WE WILL compensate Juan Gaxiola and Rafael
Gastelum for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 28, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for
each employee.
WE WILL within 14 days from the date of this Order,
remove from our files any references to the unlawful
discharges of Juan Gaxiola, Rafael Gastelum, and Juan
Marana, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
BATES PAVING & SEALING, INC.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-142681 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Sara Demirok, Esq., Cristobal Muñoz, Esq., Leticia Peña, Esq.,
for the General Counsel.
Eric Hawkins, Esq., for the Respondent.
Shayna Kessler, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
was tried in Tucson, Arizona, on April 21–22, 2015. Juan
Gaxiola (Charging Party or Gaxiola) filed the above-captioned
charge on December 22, 2014.1 The General Counsel issued the
complaint on January 30, 2015. At the hearing, I granted the
General Counsel’s request to amend the complaint. Bates Pav-
ing & Sealing, Inc. (Respondent) filed a timely answer denying
all material allegations and setting forth affirmative defenses.
The complaint and amended complaint alleges that Respond-
ent violated Section 8(a)(1) of the Act when (1) about Septem-
ber 22, it threatened employees with discharge because they
complained about Respondent’s criticism of their work perfor-
mance; (2) about September 22, it discharged Gaxiola; (3)
about October 10, it discharged employee Rafael Gastelum
(Gastelum); and (4) about September 22, it discharged employ-
ee Juan Marana (Marana).2
On the entire record,3 including my observation of the de-
meanor of the witnesses,4 and after considering the briefs filed

1 All dates are 2014 unless otherwise indicated.
2 At the hearing, the parties agreed to settle alleged overly-broad and
discriminatory rules in its employee policy manual. I approved the
settlement agreement, and the General Counsel withdrew complaint
pars. 4(a) through 4(h). I then remanded the settlement agreement to
the Regional Director to oversee compliance (Tr. 102).
3 The transcripts in this case are generally accurate, but the General
Counsel in its brief moves to correct the transcript (Tr.) 14, lines (LL.)
2, 4, and 6: the speaker is Hawkins, not Pena; Tr. 35, LL. 14–15: the
question, “Well, why don’t we start from the very beginning of this
meeting through the end of the meeting?”, is followed by the answer
beginning with “Well, I don’t know”; Tr. 170, L. 18: “screen clips”
should be “sprinklers”; Tr. 174, LL. 11–22: “binchays” should be
“pinche”; Tr. 181, LL. 20, 23: “jug” should be “job.” Respondent did
not file an opposition, and I grant the General Counsel’s request to
correct the transcript. In addition, I make the following corrections to
the transcript: Tr. 76, L. 18: “Andi” should be “And I”; Tr. 173, LL. 14,
19, 21, 25: the speaker is Mr. Muñoz, not Mr. Hawkins; Tr. 197, L. 5:
“took” should be “look”; Tr. 197, L. 21: “too” should be “took”; Tr.
202, L. 21: the speaker is Hawkins, not Judge Tracy; Tr. 311, L. 1; Tr.
313, L. 19; and Tr. 334, L. 25: spelling should be “Rafael.”
4 In making my findings regarding the credible evidence, including
the credibility of witnesses, I considered the testimonial demeanor of
such witnesses, the content of the testimony and the inherent probabili-
ties based on the record as a whole. In certain instances, I may have
credited some but not all, of what the witnesses said. “Nothing is more
common in all kinds of judicial decisions than to believe some and not
all” of the testimony of a witness. Jerry Ryce Builders, 352 NLRB
1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (951).
See also J. Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007).
This is particularly the case where the credited portions of the witness’
testimony are “consistent with the testimony of credited witnesses or
with documentary evidence,” constitute an admission against interest,
BATES PAVING & SEALING, INC. 7
by the General Counsel and Respondent,5 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, provides asphalt paving and
maintenance services at its office and place of business in Tuc-
son, Arizona, where it annually purchased and received at its
facility goods valued in excess of $50,000 directly from points
outside the State of Arizona.6 Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. STATEMENT OF FACTS
A. Background and Respondent’s Operations
Respondent operates an asphalt paving and maintenance
business. Specifically, Respondent paves roads, parking lots,
and new construction; maintains parking lots; seal coats as-
phalt; fills cracks; and places stripes and traffic markings on
asphalt. Respondent admits, and I find, that the following indi-
viduals are supervisors within the meaning of Section 2(11) of
the Act and agents within the meaning of Section 2(13) of the
Act: Robert Bates (Bates), Respondent’s president and owner,
and Robert Padilla (Padilla), Respondent’s paving supervi-
sor/manager (GC Exh. 1(c), 1(e)). Padilla became a supervisor
for Respondent in approximately April 2014.
Respondent employs 24 to 25 employees. Each paving crew
consists of truck drivers, paver operators, a scrieve man, two to
three roller men including a finish roller man,7 and at least two
laborers who are also known as rakers and shovelers. Among
these paving crew employees included Gaxiola, Marana, and
Gastelum. Gaxiola worked for Respondent as a raker (also
known as a laborer) and roller operator during various times in
the past 10 years including his latest stint from approximately
July 2010 until his termination on Monday, September 22.
Marana began working for Respondent as a driver, raker and
roller operator approximately 3 to 4 years prior to the hearing.
Gastelum worked for Respondent various times in his career as
a raker and truck driver, and most recently from approximately
April 2014 until his termination on Friday, October 10.
When Respondent paves a road or a parking lot, the employ-

or are relied upon by the party against which a particular issue is being
resolved. Upper Great Lakes Pilots, 311 NLRB 131 fn. 2 (1993). In
addition, I have carefully considered the testimony in contradiction to
my factual findings, but I have discredited such testimony, either as
having been in conflict with credited documentary or testimonial evi-
dence, or because it was in and of itself incredible and untrustworthy.
5 Other abbreviations used in this decision are as follows: “GC Exh.”
for General Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “GC
Br.” for the General Counsel’s brief; and “R. Br.” for the Respondent’s
brief. Although I have included several citations to the record to high-
light particular testimony or exhibits, I emphasize that my findings and
conclusions are based not solely on the evidence specifically cited, but
rather are based on my review and consideration of the entire record.
6 Although initially denying jurisdiction, Respondent at the hearing
stipulated to jurisdiction (Tr. 386).
7 A finish roller man irons out the asphalt to provide a smooth finish
to the surface and to remove any roller marks. This task must wait until
after the asphalt temperature cools down to the appropriate temperature
(Tr. 53–54).
ees first gather in the yard at Respondent’s facility. Padilla, as
supervisor, assigns the employees their tasks for the jobs. Re-
spondent also assigns employees vehicles and trailers. Then
the necessary equipment is moved to the jobsite. Thereafter,
Respondent (for jobs less than a day) or a subcontractor sets up
traffic barricades to secure the jobsite. After the equipment has
been unloaded and warmed, the employees begin paving the
jobsite. After the surface has been graded, compacted, graded,
and compacted again, stakes are placed in the ground for fine
tuning, upgrading and compaction. Usually the following day,
paving occurs. To pave a road or parking lot, a paver followed
by a roller goes over the asphalt, which achieves compaction.
The paving crew waits for the asphalt to cool before conducting
a finish roll with the roller which can remove roller marks (Tr.
129).
With regard to disciplinary actions, Padilla testified that as a
common practice he gives two to three verbal warnings, fol-
lowed by a written warning (Tr. 139). After two to three writ-
ten warnings, Padilla has authority to fire employees (Tr. 105).
Padilla also has authority to fire employees at any time depend-
ing on the severity of the infraction. Padilla admitted that he
does not always give written warnings or terminations to em-
ployees when they damage property but has instead given only
verbal warnings (Tr. 106–107).8 Bates testified that it is cause
for termination when an employee leaves a jobsite without
permission (Tr. 64).
B. The University of Arizona Tech Park Project
Respondent began paving the University of Arizona Tech
Park project (also referred to as “IBM,” “U of A Tech Park,”
and “Rita Ranch”) (Tech Park) on Friday, September 19. Per
the contract it was awarded, Respondent had been tasked to
pulverize and repave the parking lot. For the Tech Park project,
the paving crew consisted of seven to eight employees and
Padilla, as supervisor.
Prior to arriving at Tech Park, Padilla assigned the employ-
ees their duties for the project and set the rolling pattern (Tr.
55). When the paving crew arrived at Tech Park in the early
hours of September 19, several employees noticed wetness on
the ground in the circular drive or cul-de-sac which they needed
to pave (Tr. 24, 157–158, 218, 244, 269–272). To correct this
wetness, the wet surface needed to be dug out by as much as 18
inches, the soil replaced, and then the area paved (Tr. 128).
Padilla told the employees to pave the ground rather than dig
out all of the wet areas (Tr. 171, 221, 246, 273). The paving
crew began working at the circular drive (GC Exh. 2; Tr. 111).
Throughout the day, the paving crew complained to Padilla
about the paving job and how it looked flawed but the paving

8 Examples provided included giving a verbal warning to an em-
ployee in the summer of 2014 when he broke concrete on a customer’s
property. This same employee in September 2014 failed to wear a
hardhat at a construction site, and was given a warning (Tr. 110–111).
Another employee backed the water truck into one of the rollers caus-
ing damage to the side wall of the truck’s tire; this employee tested
positive for illegal drugs and was placed on a 90-day probationary
period during which one drug test resulted in an inconclusive finding
and another was positive for drug use. Thereafter this employee was
fired (Tr. 106–109; GC Exh. 5).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
crew was told by Padilla to keep paving (Tr. 176). Padilla re-
mained at the jobsite from approximately 5:30 to 9:30 a.m., and
then returned at approximately 1 p.m. (Tr. 128). While super-
vising, Padilla noticed roller marks and told the employees to
fix the roller marks (Tr. 129). At some point during the day,
Padilla assigned Gaxiola the duties as the finish roller. Before
Padilla left again in the afternoon, he told Gaxiola he would
return to help him finish rolling (Tr. 112, 130). Marana actually
helped Gaxiola finish the work that day (Tr. 177, 185). Gaxiola
also told Padilla that he could not work the following day due
to a death in the family (Tr. 132). Padilla then returned to Re-
spondent’s facility. At some point, Gaxiola finished his roller
work, and the traffic cones were set up before he left the jobsite
at around 4:30 p.m. (Tr. 177, 186, 224).9
At the end of the workday, Padilla saw Gaxiola from a dis-
tance before he expected him to leave the jobsite. Padilla
called Gaxiola and asked him if he finished work at the jobsite.
Gaxiola responded that he had, and the cones were in place to
protect the jobsite (Tr. 113, 130, 177, 204).10 At some point,
Padilla called Bates, who had not been at the Tech Park project
that day, to inform him that Gaxiola left the jobsite early even
though he was supposed to remain there to complete finish
rolling (Tr. 29).
Padilla then confronted Gaxiola about leaving the jobsite
early. Based on his experience, Padilla felt that Gaxiola could
not have completed the task of finish rolling (Tr. 131). At that
moment, the paving crew began arriving back at Respondent’s
facility. Gaxiola then told Padilla that he wanted to meet with
Bates (Tr. 116). Padilla asked Gaxiola what the problem was,
and Gaxiola responded that Padilla was the problem. Gaxiola
wanted to talk with Bates about how Padilla mistreated them,
and consistently screamed at them (Tr. 179). Padilla called
Bates and said that Gaxiola and the paving crew wanted to talk
with him at Respondent’s facility yard (Tr. 32, 62).
1. The paving crew’s September 19 meeting with Bates
Bates returned immediately to the yard to meet with the pav-
ing crew. Bates and Padilla attended the meeting along with
Gaxiola, Marana, Mariano Ramirez and possibly other employ-
ees.11 During this meeting, which lasted approximately 10
minutes, employees discussed the Tech Park project and the
wet conditions they found (Tr. 37–38). They explained why
they could not perform the work properly. Ramirez showed
Bates pictures of the wet conditions and the resulting finished
product (Tr. 38, 180).
During this meeting, Gaxiola spoke up, complaining about

9 Gaxiola clocked out at 5 p.m. (R. Exh. 10).
10 Padilla’s version of events is directly contrary to Gaxiola’s ver-
sion. As explained further in this decision, I did not find Padilla to be a
credible witness and do not credit his version of events when it con-
flicts with the testimony of Gaxiola.
11 Gastelum did not attend this meeting as he had left earlier when
Padilla told the employees they could go home (Tr. 277). Gaxiola
called Gastelum and told him that the employees planned to meet with
Bates on Monday morning which is why he did not return to the yard
after leaving for home (Tr. 279, 282). Gastelum agreed with his
coworkers that a meeting with Bates was necessary due to Padilla’s
behavior towards them (Tr. 280).
Padilla’s conduct towards them. Specifically, Gaxiola com-
plained about Padilla’s yelling and cursing at the employees
which affected their ability to perform satisfactorily (Tr. 32–33,
35).12 Gaxiola told Bates that Padilla expected too much from
them. He pleaded with Bates to stop Padilla’s derogatory and
abusive behavior towards them (Tr. 180–181). Marana also
spoke supporting the other employees complaining about Pa-
dilla’s treatment of them (Tr. 36, 95, 118).
Bates asked Padilla during this meeting if Gaxiola had been
telling the truth, to which Padilla responded that he needed to
yell at the employees due to the loud machinery. At some point
during this meeting, Padilla admitted he sometimes cursed at
the employees (Tr. 33). Bates emphasized that Padilla was the
supervisor and that the paving crew needed to listen to him.
Bates also said that Padilla was responsible for any mistakes,
and that he would speak with Padilla (Tr. 117–118).
The following day, Saturday, September 20, Bates went to
the Tech Park jobsite to see what had happened (Tr. 37). Upon
arriving, Bates accompanied by Padilla reviewed the work
completed the previous day, and immediately knew that por-
tions of the job would need to be redone.13 Bates did not inves-
tigate why the paving crew’s work performed the day prior
failed. Instead, he relied upon his work experience to lead him
to the conclusion that the breakdown roller man and the finish
roller man did not perform adequately (Tr. 42). The breakdown
roller man was Marana and the finish roller man was Gaxiola
(Tr. 129). Furthermore, Bates testified that the problems with
the workmanship at the Tech Park project were not related to
the wet area due to independent testing by a laboratory (Tr. 77–
78). However, this testing was performed on September 18, 1
day before the paving crew began their work at Tech Park (R.
Exh. 8).
Bates spoke with Padilla, and they discussed the “poor
teamwork” of the paving crew (Tr. 38). Bates elaborated, “I
mean, it’s not just one man. It takes a whole team because, you
know, normally, a good team will work together and help each
other out” (Tr. 40).
Furthermore, Bates, in his Board affidavit, admitted that on
September 20 Padilla and he also discussed terminating
Gaxiola based on his performance (Tr. 39–40). Bates stated in
his Board affidavit, “We also noticed a change in his attitude
for the worse” (Tr. 41).14 At the hearing, Bates testified that
Gaxiola acted in a “defiant and insubordinate” manner when he

12 Gaxiola, Gastelum, and Marana and their coworkers would dis-
cuss amongst themselves Padilla’s poor treatment (Tr. 169, 217).
Gaxiola testified that Padilla consistently yelled and cursed at them
since Padilla began employment with Respondent in the late spring.
Gaxiola described Padilla’s supervision as a “monster” (Tr. 168).
Gastelum testified that Padilla would curse at the employees, tell the
employees that they were too old and that he needed a younger crew
(Tr. 262–266). The employees agreed to meet with Bates.
13 One week later, Respondent repaved portions of the Tech Park
project jobsite per the client’s request. The area repaved included the
circular drive area which had gotten wet as well as the roller marks on
the roadway (Tr. 70, 76; GC Exh. 2).
14 Bates’ affidavit, given during the Board’s investigation of this
charge, is more reliable than his testimony during the hearing since his
recollection of the events would have been fresher.
BATES PAVING & SEALING, INC. 9
failed to put up the traffic barricades and left the jobsite earlier
than he should have (Tr. 41–42). Bates testified that Gaxiola’s
“bad attitude” was exhibited by his failure to place the safety
barricades and leaving the jobsite early (Tr. 77).
2. Gaxiola’s termination
On Monday, September 22, approximately 15 to 20 minutes
after Gaxiola clocked in to work, Padilla called him into Re-
spondent’s office (Tr. 119, 182). Padilla also asked the shop
mechanic foreman, Mario Marstellar, to join them. Padilla told
Gaxiola that he would have to let him go (Tr. 340–341).
Thereafter, Gaxiola became angry and cursed (Tr. 341).
Gaxiola denied causing the problems at the Tech Park project;
Padilla then tried to show Gaxiola some pictures from the job.
These pictures showed the roller marks at Tech Park. Padilla
told Gaxiola that he was fired for leaving the job early that
prior Friday, and leaving roller marks in the asphalt (Tr. 184).
Gaxiola denied arguing with Padilla before he was fired but
admitted that after he had been fired, Marstellar told him to
calm down (Tr. 183).
In contrast, Padilla testified that he fired Gaxiola for arguing
with him and telling him he did not have to listen to him (Tr.
120–121). Padilla elaborated that he fired Gaxiola for cursing
at him and for being insubordinate which was the only reason
why Gaxiola was fired, not for his work performance (Tr. 121,
365–366).
However, Gaxiola’s termination notice dated September 22
and completed by Padilla, states:
Juan left the jobsite U.A. Tech Park without finishing task that
was given as finish roller man. Juan got to yard befor[e] entire
crew, I asked Juan to go back to U.A. Tech Park he said NO
he had finished. So I Robert went to Job site found Job not
comtleted [sic] toll marks all over roadway & parking lot also
did not put back traffic control back up was big safety hazard.
(R. Exh. 1). Padilla testified that the description in Gaxiola’s
termination notice was the reason why the argument between
Gaxiola and himself occurred, but that he actually fired Gaxiola
for his conduct during this meeting (insubordination) (Tr. 122).
Padilla testified that he did not put this reason for Gaxiola’s
termination on the form because “It slipped my mind” (Tr.
123).15
After Gaxiola’s termination, many employees including
Gastelum discussed Gaxiola’s termination, expressing concern

15 Prior to his termination on September 22, Gaxiola voluntarily re-
signed in February 2013 after he was verbally warned for being late (R.
Exh. 2). In June 2013, Gaxiola also quit because it was “too hot” and
“too hard,” and he did not want to work (R. Exh. 3). In May 2008,
Respondent suspended Gaxiola for 2 days after he left a jobsite without
notifying anyone (R. Exh. 4). Thereafter, Gaxiola did not return to
work. Bates testified that only upon reviewing Gaxiola’s personnel
records after Gaxiola had been fired did he realize that Gaxiola had
worked for Respondent several times in the past, and had quit or re-
signed several times (Tr. 60). However, subsequent to this testimony,
Bates stated that he was aware of Gaxiola’s personnel history with
Respondent when Padilla called him the afternoon of September 19 to
discuss Gaxiola’s actions that day (Tr. 61–62). As discussed further,
generally I found Bates to be a less than credible witness. This incon-
sistent testimony is one example of Bates’ less than credible testimony.
about who may be next (Tr. 293). Gastelum never discussed
Gaxiola’s firing with anyone from Respondent.
3. Bates’ September 23 meeting with the paving crew
On approximately Tuesday, September 23, Bates called a
meeting with the paving crew. The employees attending the
meeting included Marana and Gastelum, along with Bates,
Padilla, and Marstellar. Bates scheduled the meeting to discuss
Gaxiola’s early absence on Friday, September 19, and the pav-
ing crew’s “workmanship” at the Tech Park project (Tr. 46).
Bates understood from Padilla that Gaxiola had told his
coworkers he needed to leave early that Friday because his
uncle had passed away (Tr. 47).16 Bates told the employees
that he was concerned that no one had offered to help Gaxiola
complete the work so he could leave early on September 19
(Tr. 48–49, 76).
Bates also informed the paving crew that the client for the
Tech Park project rejected the work and it needed to be redone.
Bates angrily spoke with the employees about their lack of
teamwork, what happened at the jobsite, their responsibilities,
and what they would do in the future for teamwork (Tr. 76,
290). Bates told the employees how much redoing the Tech
Park project would cost him. Bates testified that the problems
at the jobsite were due not only to Gaxiola but also to Marana
who was the other roller man on September 19 (Tr. 84). Bates
elaborated at the hearing, “not to point fingers just at Juan
Gaxiola, but also at the other roller man and the raking was
terrible on that job” (Tr. 84–85).
At this point during the meeting, Marana said to Bates that
the problems at the jobsite arose because of Padilla’s yelling,
Padilla was to blame for the poor quality, and that Bates should
not yell at him (Tr. 85, 96, 256–257). Bates testified that he
told Marana, “Listen, I’m telling you to improve your work
and, if you don’t like it, you get out of here right now. You can
leave” (Tr. 85, 97, 230, 232–233, 256, 381). Marana testified
that Bates said, “[H]e told me he could yell to me or to anybody
that was there. That’s when he told me that I was fucking
fired” (Tr. 381).17 Gastelum testified that Marana attempted to
speak but then Bates said, “You mother fucker, get the fuck out
of here, out of my company right now. You’re fired. Get out
of here. Go. Go. Get the fuck out of here. I don’t want you
here. Go” (Tr. 290). However, Marana remained at the meeting
(Tr. 234, 291, 324).
Gastelum spoke after Bates calmed down. Gastelum told
Bates that with Bates and Padilla’s combined experience they
should know that the work would not be perfect due to the wa-

16 During his testimony, Bates stated that he “misunderstood” what
Padilla had told him and thus, his Board affidavit was incorrect. Bates
learned that Gaxiola requested to take Saturday off because his uncle
had passed away (Tr. 48). It is irrelevant what Bates later understood
Padilla to say regarding Gaxiola’s absence. What is significant is what
Bates understood at the time of the September 23 meeting.
17 Bates and Marana disagree on whether Bates told Marana he was
fired. Gastelum credibly testified that Bates told Marana to leave and
that he was fired (Tr. 290). Whether Bates used the term “fired” is
insignificant. Bates admitted that he did tell Marana that he could leave
if he could not perform the job. Thus, what is clear is that Marana
understood, at least for a brief time period, that he was fired and told to
leave the workplace.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ter (Tr. 291). Bates responded with sarcasm (Tr. 292).
After the meeting ended, Bates informed Marana that he was
not fired (Tr. 85, 97, 153, 247, 382). Marana came to work the
next day, and has continued employment with Respondent (Tr.
236).18
C. Gastelum’s Termination
On Wednesday, October 1, Padilla issued Gastelum a warn-
ing for unsatisfactory performance for his alleged unsafe un-
loading of equipment, and damage to the dump truck (R. Exh.
11; Tr. 300). That day, Padilla asked Gastelum to get a paver
from Respondent’s facility (Tr. 87). When Gastelum began to
unload the paver from the trailer, the back of the dump truck
and the trailer began to jack-knife. Another employee saw
what was happening and pushed the safety release button (Tr.
87–88, 298). This incident caused damage to the dump truck
(R. Exh. 9; Tr. 299). Gastelum admitted partial responsibility
for the incident (Tr. 300). The warning issued to Gastelum for
this incident indicated that another safety violation by Gastelum
would result in termination. The employee who pressed the
safety release button was not disciplined.
Thereafter, Padilla fired Gastelum on Friday, October 10.
Padilla assigned Gastelum responsibility for raking a handicap
spot (Tr. 302). Padilla told Gastelum his raking was poor that
day but Gastelum told Padilla that a new employee caused the
problems, not Gastelum (Tr. 302). Padilla testified that he fired
Gastelum for his “poor workmanship” in his raking (R. Exh.
12; Tr. 125, 363). Padilla testified that he spoke to Gastelum
weekly, beginning before the September 22 meeting, about the
poor quality of his raking (Tr. 141–142). Even on the Tech
Park project, Padilla spoke with Gastelum about his poor raking
(Tr. 364). According to Bates, Padilla began speaking to him
about Gastelum’s workmanship 3 to 4 weeks before he was
fired (Tr. 51). Gastelum admitted that Padilla had told him to
work faster (Tr. 305). Padilla testified that he fired Gastelum
for his poor raking on several projects, and that he does not
“fire somebody because of one project” (Tr. 363).
Prior to his termination, Respondent disciplined Gastelum
several times for damaging Respondent’s equipment. In Sep-
tember 2007, Gastelum damaged Respondent’s property; Re-
spondent issued Gastelum a warning and placed him on proba-
tion (GC Exh. 7). In August 2008, Gastelum completed a
property damage report when he damaged Respondent’s truck
(GC Exh. 8). In January 2009, Respondent warned Gastelum
that his paving/patches were poorly constructed (GC Exh. 8).
Respondent also issued Gastelum a warning in November 2009
for unsatisfactory performance when he brought broken items

18 I do not credit Marana’s version of events for the September 23
meeting. Marana’s testimony conflicted with his affidavit provided
during the Board investigation. During the Board investigation, Mara-
na stated that after the meeting ended, Bates approached him and told
him he was not fired (Tr. 247). During his hearing testimony, Marana
on direct examination testified that no one from Respondent told him
he was not fired, and he came to work the following day because he
needed to work. On redirect, Marana then testified that after the meet-
ing Bates came to him and told him he was still fired while using pro-
fanity (Tr. 257). Because Marana’s testimony differed every time he
was asked the same or similar question, I cannot credit his testimony.
in his truck load with a subsequent violation leading to a sus-
pension (GC Exh. 6). In December 2009, Respondent suspend-
ed Gastelum for damaging equipment when he was in an acci-
dent, and then subsequently terminated his employment (GC
Exh. 6). The narrative in this suspension explained that
Gastelum had been involved in other accidents which damaged
Respondent’s equipment. These actions were seen as serious
safety issues.
I. DISCUSSION AND ANALYSIS
A. Witness Credibility
The witness’ testimony varied considerably on the key
events. Thus, I must make a decision as to which parts of the
sharply differing accounts are credible. A credibility determi-
nation may rely on a variety of factors, including the context of
the witness’ testimony, the witness’ demeanor, the weight of
the respective evidence, established or admitted facts, inherent
probabilities and reasonable inferences that may be drawn from
the records as a whole. Double D Construction Group, 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623
(2001) (citing Shen Automotive Dealership Group, 321 NLRB
586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir.
2003); see also Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006) (noting that an ALJ may draw an
adverse inference from a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its ver-
sion of event, particularly when the witness is the party’s
agent). Credibility findings need not be all of all-or-nothing
propositions—indeed, nothing is more common in all kinds of
judicial decisions than to believe some, but not all, of a witness’
testimony. Daikichi Sushi, supra.
Along with my credibility findings set forth above in the
findings of fact for this decision, I found the testimony of
Gaxiola and Gastelum to be mostly credible. Both Gaxiola and
Gastelum testified in an accurate and forthright manner, and
provided generally consistent, specific and detailed testimony.
In making the above findings of fact, I relied extensively on the
testimony given by Gaxiola and Gastelum. I relied partially on
Marstellar’s testimony but only when it was not contradicted by
the credible testimony of Gaxiola and Gastelum.
In contrast, I do not find credible the testimonies of Bates,
Padilla, and Marana. Padilla’s testimony generally was incon-
sistent and contrary to the documentary evidence including his
own affidavit given during the Board investigation which is
more proximate in time to the events in this case than the hear-
ing. Most damaging to Padilla’s testimony was his explanation
for why he did not provide the “true” reason for Gaxiola’s ter-
mination in the paperwork; Padilla testified flippantly, “It
slipped my mind.” I find his lack of candor to be significant,
and did not credit any of his testimony.
Second, Marana’s testimony at the hearing was contradicted
by his Board affidavit. Specifically, Marana denied knowing
that he was not actually fired at the end of the September 23
meeting. However, in his Board affidavit Marana stated that
Bates told him he was not fired. Even on redirect Marana’s
version of this event changed. Because his responses changed
throughout his testimony, I cannot credit his testimony general-
BATES PAVING & SEALING, INC. 11
ly. However, I credit those portions of his testimony corrobo-
rated by the credible testimony of Gastelum.
Third, Bates’ testimony lacked candor generally in the criti-
cal portions of his testimony. Significantly, Bates testified that
he called the September 23 meeting, in part, to discuss why the
other crew members did not help Gaxiola finish his work late
on Friday, September 19. If this was true and if he had such a
concern, then it makes little sense for Bates to have approved
Padilla’s firing of Gaxiola for leaving early on Friday, Septem-
ber 19. I also could not credit his testimony that he did not tell
Marana he was fired at the September 23 meeting since it was
contradicted by the credible testimony of Gastelum. However,
I do credit his version of the context in which he made this
statement. Bates testimony also lacked significant details but
these details came to light on cross-examination due to his tes-
timony in his Board affidavit.
B. Respondent Threatened Employees with Discharge
Violating the Act
The complaint and amended complaint alleges at paragraphs
5(a) and (b)(1) that Respondent violated Section 8(a)(1) of the
Act on about September 22, when through Bates it threatened
employees with discharge because they complained about Re-
spondent’s criticism of their work performance.19
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.
Section 8(a)(1) makes it unlawful for an employer (via state-
ments, conduct, or adverse employment action such as disci-
pline or discharge) to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7. Relco
Locomotives, 358 NLRB 298, 309 (2012), enfd. 734 F.3d 764
(8th Cir. 2013).
In general, the test for evaluating whether an employer’s
conduct or statements violate Section 8(a)(1) of the Act is
whether the statements or conduct have a reasonable tendency
to interfere with, restrain, or coerce protected activities. Id.;
Station Casinos, LLC, 358 NLRB 1556, 1573–1574 (2012);
Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB 1339,
1339 fn. 3 (2000); Farm Fresh Company, Target One, LLC,
361 NLRB No. 83, slip op. at 14 (2014). Apart from a few
narrow exceptions, an employer’s subjective motivation for its
conduct or statements is irrelevant to the question of whether
those actions violate Section 8(a)(1) of the Act. See Station
Casinos, LLC, supra. The Board considers the totality of the
circumstances in assessing the reasonable tendency of an am-
biguous statement or a veiled threat to coerce. KSM Industries,
336 NLRB 133, 133 (2001).
The burden of proof lays with the General Counsel to prove
8(a)(1) allegations by a preponderance of the evidence.
Here, the only incident where an employee was threatened
with discharge occurred during the Tuesday, September 23
meeting called by Bates to discuss the workmanship of the
paving crew on the Tech Park project. Bates yelled at Marana
during this meeting, and told him that he was partially to blame

19 Respondent failed to address this allegation in its post hearing
brief, relying only upon its position that Marana had never actually
been fired (R. Br. at 14–15).
for the failure on that job. In response, Marana told Bates that
it was not his fault, not to yell at him, and that it was the fault
of Padilla. Bates then said to Marana, “Listen, I’m telling you
to improve your work and, if you don’t like it, you get out of
here right now. You can leave” (Tr. 85). Marana testified that
Bates actually said, “[H]e told me he could yell to me or to
anybody that was there. That’s when he told me that I was
fucking fired” (Tr. 381). Gastelum, who provided credible
testimony, could not recall what Marana said to Bates but re-
called that Bates clearly told Marana to leave and that he was
fired. As discussed later, although Bates retracted his discharge
statement to Marana, his statement to Marana constituted a
threat.
Marana was engaged in protected concerted activity during
this meeting since he protested Bates’ treatment of his cowork-
ers and himself during this meeting while also casting blame on
Padilla for the failed project. I find that Bates’ statement about
firing of Marana would tend to restrain or interfere with em-
ployees in the exercise of their Section 7 rights. The context in
which this statement was made to Marana is significant. Mara-
na, who spoke critically of Padilla during the September 19
meeting, continued his criticism of Padilla’s treatment of em-
ployees during the September 23 meeting. During the Septem-
ber 19 meeting, Gaxiola and Marana complained that the prob-
lems at Tech Park project resulted in defects in the paving;
Padilla was to blame due to his abusive behavior towards them.
Marana during the September 23 meeting again blamed Padilla
for the workmanship at the jobsite. Bates responded to Marana
with a threat by telling him he was fired. Even Bates admitted
that he told Marana that if he did not perform how Bates ex-
pected, then he could leave.
It is well settled that an employer’s invitation to an employee
to quit in response to protected concerted activity is coercive,
because it conveys to employees that engaging in concerted
activities and their continued employment are not compatible,
and implicitly threaten discharge of the employees involved.
McDaniel Ford, 322 NLRB 956, 956 fn. 1 and 962 (1997) (cit-
ing Stoody Co., 312 NLRB 1175, 1181 (1993), Kenrich Petro-
chemicals, 294 NLRB 519, 531 (1989), and L.A. Baker Elec-
tric, 265 NLRB 1579, 1580 (1983)); see also Jupiter Medical
Center Pavilion, 346 NLRB 650, 651 (2006) (employer’s
statement that, if employee was unhappy, “[m]aybe this isn’t
the place for you . . . there are a lot of job’s out there” was an
implied threat of discharge); Paper Mart, 319 NLRB 9 (1995)
(president’s statement that if employee “was not happy he
could seek employment elsewhere” was implicit threat of dis-
charge); Intertherm, Inc., 235 NLRB 693, 693 fn. 6 (1978)
(implied threat to tell employees that if “he was not happy with
the company he should look elsewhere for a job”) enfd. in rele-
vant part 596 F.2d 267 (8th Cir. 1979); Chinese Daily News,
346 NLRB 906, 906 (2006) (implied threat telling employee to
resign if she was not happy with her job), enfd. 224 Fed. Appx.
6 (D.C. Cir. 2007).
Considering Bates’ comments to Marana came after he men-
tioned Padilla, along with the context of this meeting and the
September 19 meeting, I find that Bates’ comments reasonably
tended to interfere with, restrain, or coerce employees in their
protected, concerted activities and thus constituted a threat, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
thus a violation of Section 8(a)(1) of the Act.
C. Respondent’s Discharge of Gaxiola Violated the Act
The complaint and amended complaint, at paragraphs 5(a)
and (c), alleges that Gaxiola was terminated because of his
protected concerted activities, in violation of Section 8(a)(1) of
the Act. Respondent argues that Gaxiola was terminated for a
variety of reasons, including failing to finish his work assign-
ment, leaving the work site prematurely, and insubordination. I
disagree with Respondent, and find that the General Counsel
has sustained its burden of proof.
An employee’s discharge independently violates Section
8(a)(1) of the Act when it is motivated by employee activity
protected by Section 7. Lou’s Transport, 361 NLRB No. 158,
slip op. at 2 (2014). To prove an adverse action violates Sec-
tion 8(a)(1), the General Counsel must establish, by preponder-
ant evidence , that: (1) the employee engaged in concerted ac-
tivity, (2) the employer knew about the concerted activity, and
(3) the employer had animus toward the activity. Meyers In-
dustries, 268 NLRB 493, 497 (1984); Grand Canyon Universi-
ty, 359 NLRB No. 164 (2013). If the General Counsel is able
to make such a showing, the burden of persuasion shifts to the
employer “to demonstrate that the same action would have
taken place even in the absence of the protected conduct.”
Wright Line, 251 NLRB 1083, 1089 (1980). See also Signature
Flight Support, 333 NRLB 1250, (2001) (applying Wright Line
in context of discharge for protected concerted activity).
The employer cannot meet its burden by merely showing that
it had a legitimate reason for its action; rather, it must demon-
strate that it would have taken the same action in the absence of
protected conduct. Bruce Packing Co., 357 NLRB 1084, 1086–
1087 (2011); Roure Bertrand Dupont, Inc., 271 NLRB 443,
443 (1984). If the employer’s proffered reasons are
pretextual—i.e., either false or not actually relied on—the em-
ployer fails by definition to show it would have taken the same
action for those reasons regardless of the protected conduct.
Metropolitan Transportation Services, 351 NLRB 657, 659
(2007); Golden State Foods Corp., 340 NLRB 382, 385 (2003);
Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982). Absent a showing of antiunion,
or anti-Section 7 activity, an employer may discharge an em-
ployee for a good reason, a bad reason or no reason at all with-
out running afoul of the labor laws. See Clothing Workers v.
NLRB (AMF, Inc.), 564 F.2d 434, 440 (D.C. Cir. 1977).
As to the first factor, Gaxiola clearly engaged in concerted
activity. Gaxiola spearheaded the meeting with Bates after he
and his coworkers could no longer tolerate Padilla’s abusive
behavior towards them. Fresh & Easy Neighborhood Market,
Inc., 361 NLRB No. 12, slip op. at 4–5 (2014). Concerted ac-
tivity directed toward supervisory conduct, such as “rude, bel-
ligerent, and overbearing behavior” which directly affects the
employees’ work, constitutes protected activity under the Act.
Arrow Electric Co., 323 NLRB 968, 970 (1997), enfd, 155 F.3d
762 (6th Cir. 1998). As for the second factor, it is undisputed
that Respondent had notice that Gaxiola acted in concert with
other employees. Gaxiola spoke with Padilla to call Bates to
hold a meeting to discuss Padilla’s supervision. Furthermore,
along with Bates, Padilla attended the September 19 meeting
and witnessed who spoke during this meeting and what they
said.
There is ample evidence to show that Gaxiola’s termination
was motivated by his protected, concerted activity. The Gen-
eral Counsel sustained its burden to prove animus toward the
protected activity. Improper motivation may be established by
circumstantial evidence, inferred from several factors, includ-
ing pretextual and shifting reasons given for the employee’s
discharge, the timing between an employee’s protected activi-
ties and the discharge, inconsistent treatment of employees, and
the failure to adequately investigate alleged misconduct. Temp
Masters, Inc., 344 NLRB 1188, 1193 (2005); Promedica
Health Systems, Inc., 343 NLRB 1351, 1361 (2004); Flour
Daniel, Inc. 311 NLRB 498 (1993). Discriminatory motive may
also be established by showing departure from past practice or
disparate treatment. See JAMCO, 294 NLRB 896, 905 (1989),
affd. mem., 927 F.2d 614 (11th Cir. 1991), cert. denied 502
U.S. 814 (1991); Naomi Knitting Plant, 328 NLRB 1279, 1283
(1999).
The timing of Gaxiola’s termination, only 3 days after the
September 19 meeting, and his first day back to work, is strong
evidence of unlawful motivation. See Best Plumbing Supply,
310 NLRB 143, 144 (1993). In fact, the day after the employ-
ee’s meeting with Bates, Bates and Padilla discussed Gaxiola’s
changing attitude for the “worse.” This comment is a veiled
reference to Gaxiola’s conduct the day before. Similarly, the
Board has found evidence of animus where an employer cited
that an employee was a “disruptive force in the workplace.”
Skyline Lodge, 305 NLRB 1097 fn. 1 (1992), enfd. 983 F.2d
1068 (6th Cir. 1992).
Significantly, Padilla provided shifting reasons for terminat-
ing Gaxiola. When an employer is unable to maintain a con-
sistent explanation for its conduct, but rather resorts to shifting
defenses, “it raises the inference that the employer is ‘grasping
for reasons to justify its unlawful conduct.’” Meaden Screw
Products Co., 336 NLRB 298, 302 (2001), citing Royal Devel-
opment Co. v. NLRB, 703 F.2d 363, 372 (9th Cir. 1983). See
also Master Security Services, 270 NLRB 543, 552 (1984) (an-
imus demonstrated where an employer used a multiplicity of
reasons to justify disciplinary action). Padilla noted on
Gaxiola’s termination paperwork that he was terminated for
leaving the jobsite early and for failing to place the safety
cones. However, Padilla testified that he actually terminated
Gaxiola for insubordination when Gaxiola yelled at him when
Padilla sought to talk with Gaxiola about leaving the jobsite
early that prior Friday resulting in poor quality at the Tech Park
project. Marstellar, currently employed by Respondent, credi-
bly testified that Gaxiola raised his voice at Padilla after he had
already been fired. Current employees are particularly credible
since they are testifying adversely to their pecuniary interests.
Advocate South Suburban Hospital, 345 NLRB 209 fn. 1
(2006), citing Flexsteel Industries, 316 NLRB 745 (1995), affd.
mem. 83 F.3d 419 (5th Cir. 1996). When asked why he did not
include the “real” reason for terminating Gaxiola in the paper-
work, Padilla testified, “It slipped my mind.” Providing addi-
tional reasons for discharge at a hearing provides evidence of
pretext. Lucky Cab Co., 360 NLRB No. 43, slip op. at 6
(2014).
BATES PAVING & SEALING, INC. 13
Based on the foregoing, I find that the General Counsel has
met its burden to prove that animus toward Gaxiola’s protected
concerted activities motivated Respondent’s decision to dis-
charge him.
Having concluded that the General Counsel satisfied his ini-
tial burden under Wright Line, the burden shifts to Respondent
to prove, as an affirmative defense, that it would have disci-
plined Gaxiola in the absence of his protected, concerted activi-
ty. Respondent claims that Gaxiola failed to complete his work
on September 19, and the resulting termination was justified (R.
Br. at 7–11). Respondent has not proven its claim.
First, I have credited Gaxiola’s testimony that he completed
his assigned tasks before leaving work on September 19. In
addition to the reasons set forth above, such as the timing and
the shifting reasons for discharge, it is also significant that Re-
spondent chose to terminate Gaxiola rather than give him a
warning or other disciplinary measure for allegedly leaving the
worksite early and not completing his assignment. Respondent
did not follow its progressive disciplinary practice. Further-
more, Padilla testified that he would not terminate an employee
for performance on one job alone. In other instances of disci-
plinary actions, Respondent chose to give several warnings to
employees before finally terminating them. For example, one
employee failed at least 3 drug tests before he was terminated.
Evidence of disparate treatment supports a finding of animus.
Camaco Loran Mfg. Plant, 356 NLRB 1182, 1186 (2011).
Respondent also argues that Gaxiola’s work history showed
a pattern of not completing tasks. However, Respondent con-
tinued to hire Gaxiola, and during his latest employment with
Respondent, Gaxiola worked for the past 6 years without any
disciplinary actions.
Finally, Respondent’s subsequent actions belie the true rea-
sons for Gaxiola’s termination. Bates testified he held the Sep-
tember 23 meeting with the paving crew, after Gaxiola’s termi-
nation, to discuss, in part, why the employees did not attempt to
help Gaxiola since he needed to leave early that day. Bates also
admitted that the poor workmanship on the Tech Park project
was due to the entire team failing to work together. It makes
little sense for Bates to have approved Gaxiola’s termination
for leaving the jobsite early and causing its poor quality when it
was a poor job performed by the entire team and because
Gaxiola needed to leave early that day as he understood at the
time of the September 23 meeting. It is readily apparent that
Gaxiola’s protected concerted activity was a motivating factor
in Respondent’s decision to terminate. Respondent failed to
sustain its burden of proof.
Accordingly, I find that the General Counsel proved that Re-
spondent violated Section 8(a)(1) of the Act when it terminated
Gaxiola.
D. Respondent Did Not Discharge Marana
The complaint and amended complaint, at paragraphs 5(a)
and (e), alleges that Marana was terminated because of his pro-
tected concerted activity, in violation of Section 8(a)(1) of the
Act. Respondent argues that Marana was never actually fired.
I agree with Respondent.
Generally, employees cannot claim discriminatory discharge
unless they have been actually discharged. In analyzing this
allegation, I must rely solely on credibility. As set forth above,
I find that Bates told Marana he was fired, but shortly after the
meeting Marana learned that Bates did not actually intend to
fire Marana. Marana also never left the meeting. Marana had
been engaged in concerted activity when he attended and ac-
tively participated in the September 19 meeting discussing
Padilla’s supervision of the paving staff. Marana also spoke
with his coworkers prior to this meeting about Padilla’s poor
supervision. Furthermore, Marana engaged in concerted activi-
ty during Bates’ September 23 meeting when he blamed Padilla
for the poor workmanship on the Tech Park project. However,
in reviewing the totality of the circumstances, as discussed
above, Bates threated Marana with job loss violating Section
8(a)(1) of the Act but never actually fired Marana.
The General Counsel essentially argues that because Marana
had been engaged in concerted activity prior to the September
23 meeting as well as during the September 23 meeting when
he lay the blame of the poor workmanship on Padilla that Bates
response to “fire” Marana is both a threat and an actual dis-
charge, resulting in 2 violations of the Act. The General Coun-
sel cited no Board cases where an 8(a)(1) violation had been
found for discharge without an actual discharge or constructive
discharge.
The only case cited by the General Counsel, Georgia Hosi-
ery Mills, 207 NLRB 781 (1973), does not support a finding of
a violation of the Act. In Georgia Hosiery Mills, the employer
terminated an employee the day after she led a group of em-
ployees in a work stoppage to protest their working conditions
and wages. The employer refused to allow the discharged em-
ployee into the workplace. One hour after her discharge, the
employer reinstated the discharged employees. The Board
determined that although the termination had been substantially
remedied before the complaint had been issued, the termination
occurred during the course of events involving other violations
of the Act, and thus the termination violated the Act. The situa-
tion presented here is distinguishable. Marana suffered no
actual harm, and his “firing” was cleared up soon after the Sep-
tember 23 meeting ended.
Hence, I find that the General Counsel failed to show that
Respondent violated Section 8(a)(1) by discharging Marana,
and recommend that this allegation be dismissed.
E. Respondent’s Discharge of Gastelum Did Not
Violate the Act
In the complaint and amended complaint paragraphs 5(a) and
(d), the General Counsel alleges that Gastelum was terminated
because of his protected concerted activities, in violation of
Section 8(a)(1) of the Act. Respondent argues that Gastelum
was terminated for cause. Although I find Gastelum to be a
highly credible witness, the General Counsel failed to sustain
its burden of proof that Respondent terminated Gastelum for
protected, concerted activity.
The same Wright Line analysis as discussed above applies to
Gastelum’s discharge. As for the first factor, Gastelum argua-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
bly engaged in concerted activity when he spoke during Bates’
September 23 meeting. Once Bates calmed down, Gastelum
told Bates that with the combined experience of Bates and Pa-
dilla they should know the work would not turn out well due to
the water in the ground. Bates responded with sarcasm.
Gastelum’s comments were a continuation of the employees’
problems with Padilla’s supervision and failure of the Tech
Park project. Alton H. Piester, LLC, 353 NLRB 369 (2008). As
for the second factor, obviously Respondent was aware of
Gastelum’s concerted activity since he attended and spoke at
the September 23 meeting but the record is devoid of any evi-
dence that Respondent knew that Gastelum agreed with his
coworkers regarding Padilla’s poor supervision nor that he
would have attended the September 19 meeting if he had been
aware of it.
Regarding the third prong, the General Counsel failed to
prove animus by Respondent when it terminated Gastelum.
Notably and significantly, Gastelum did not attend the Septem-
ber 19 meeting where the employees proactively met with
Bates to complain about Padilla. Furthermore, even though
Gastelum spoke during the September 23 meeting, his com-
ments did not mention Padilla’s poor supervision, which was
the subject of the September 19 meeting. Thus, there is a failure
to prove animus toward Gastelum’s activities, and I find that
the General Counsel has failed to prove by a preponderance of
the evidence that a motivating factor for Gastelum’s discharge
was his protected, concerted activity.
Moreover, even had the General Counsel shown that
Gastelum’s protected, concerted activity was a motivating fac-
tor, I find that Respondent has shown that it would have dis-
charged Gastelum in any event. Respondent also did not termi-
nate Gastelum until 3 weeks after Gaxiola had been terminated.
In the interim Gastelum had not engaged in any other concerted
activity. The factual scenario presented here is not analogous
the various decisions cited by the General Counsel in which a 3
week gap was factor supporting pretext or animus on the part of
the employer.
Even before terminating Gastelum, Respondent issued
Gastelum a warning for the safety incident of October 1.
Gastelum’s disciplinary records show that he had been warned
several times regarding various safety violations, including
damage to company equipment. When Respondent eventually
terminated Gastelum on October 10, Padilla mentioned that
Gastelum had performed poorly raking on several projects.
Gastelum disagreed with Padilla’s assessment but admitted that
he had been asked to work faster. In all, the General Counsel
has shown no animus on the part of Respondent when terminat-
ing Gastelum.
Hence, I find that the General Counsel failed to show that
Respondent violated Section 8(a)(1) by discharging Gastelum,
and recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act when it
threatened Marana on September 23.
3. Respondent violated Section 8(a)(1) of the Act when it
terminated Gaxiola on September 22.
4. By engaging in the unlawful conduct set forth above, Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and Section 2(2),
(6), and (7) of the Act.
5. All other allegations are dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there
from and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having threatened employees with loss of employment for
engaging in protected concerted activities, Respondent is or-
dered to cease and desist from this action.
Respondent, having discriminatorily discharged employee
Juan Gaxiola, must offer him full reinstatement to his former
position or, if his position no longer exists, to substantially
equivalent position, without prejudice to his seniority or any
other right or privileges previously enjoyed, and to make him
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). In addition, Respondent shall file a report
with the Social Security Administration allocating backpay to
the appropriate calendar quarters. Respondent shall also com-
pensate the discriminatee for the adverse tax consequences, if
any, of receiving one or more lump-sum backpay awards. Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).
I will order that the employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010). In accordance with J.
Picini Flooring, the question as to whether an electronic notice
is appropriate should be resolved at the compliance phase. Id.,
slip op. at 3.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Bates Paving & Sealing, Inc., Tucson, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Cease and desist from threatening employees with loss
of employment for engaged in protected concerted activities.
(b) Discharging or otherwise discriminating against any em-

20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
BATES PAVING & SEALING, INC. 15
ployee for engaging in protected, concerted activity and/or for
violating an unlawful rule.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of the Board’s Order, offer
Juan Gaxiola full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to Juan Gaxiola’s unlawful
discharge and within 3 days thereafter notify him in writing that
this has been done and that the discharge will not be used
against him in any way.
(c) Make Juan Gaxiola whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(d) Compensate Juan Gaxiola for the adverse tax conse-
quences, if any, of receiving a lump sum backpay award, and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
(e) 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 rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Tucson, Arizona, the attached notice marked “Appen-
dix”21on forms provided by the Regional Director for Region
28, after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of

21 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.”
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since September 19,
2014.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. July 20, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT make threats to you that engaging in protected
concerted activity could result in job loss.
WE WILL NOT terminate you because of your protected con-
certed activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, offer
Juan Gaxiola full reinstatement to his former job or, if that job
no longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Juan Gaxiola whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Juan Gaxiola for the adverse tax con-
sequences, if any, of receiving one or more lump-sum backpay
awards.
WE WILL, within 14 days from the date of this Order, remove
from our files any references to the unlawful discharge of Juan
Gaxiola, and notify him in writing that this has been done and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
that the discipline and discharge will not be used against him in
any way.
BATES PAVING & SEALING, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-142681 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.