Extreme Building Services

National Labor Relations Board - Administrative Judge Opinions

Feb 10, 2003

29-CA-024894 (N.L.R.B. Feb. 10, 2003)

JD(NY)–08-03
Great Neck, NY

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

EXTREME BUILDING SERVICES CORP.

and Case Nos. 29-CA-24894
29-CA-25007
29-CA-25082

LOCAL 78, ASBESTOS LEAD AND HAZARDOUS WASTE UNION,
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO

Tara O’Rourke, Esq., Brooklyn, NY,
for the General Counsel.
Steven M. Coren, Esq. (Coren & Braun, P.C.),
New York, NY, for the Respondent.
Lowell Peterson, Esq. (Meyer, Suozzi,
English & Klein, P.C.), New York, NY
for the Charging Party.

DECISION

Statement of the Case

STEVEN DAVIS, Administrative Law Judge: Based on a charge and an amended
charge filed on May 2, and June 26, 2002,1 respectively, in Case No. 29-CA-24894 by Laborers’
Eastern Regional Organizing Fund, Laborers International Union of North America, AFL-CIO
(Union),2 and based on a charge and an amended charge filed on June 28 and August 20,
respectively, in Case No. 29-CA-25007 by the Union, and based on a charge filed on
September 5 in Case No. 29-CA-25082 by it, a complaint and an amended complaint were
issued on August 20 and September 5, respectively, against Extreme Building Services Corp.
(Respondent, Employer or Extreme).

The complaints allege essentially that the Respondent (a) interrogated its employees
about their membership in a union (b) threatened employees with plant closure because of their
union activities (c) informed employees that a former employee was discharged because of his
support for the Union and that the Respondent would not hire or retain employees if they
supported or engaged in union activities (d) threatened employees with physical harm (e)
destroyed employees’ property by ripping up their asbestos handlers’ licenses (e) impeded
employees’ access to a fire hydrant to wash their hands (f) threatened employees with an
investigation to discover whether they were members of the Union (g) threatened employees
with discharge because of their support for the Union (h) conditioned employees’ employment
on their abandonment of their support for the Union and their cessation of activities on behalf of
the Union (i) informed employees that it would be futile for them to select the Union as their
1 All dates hereafter are in 2002 unless otherwise stated.
2 At the hearing, the complaint was amended to substitute Local 78, Asbestos Lead and
Hazardous Waste Union, Laborers International Union of North America, AFL-CIO for the name
of the Charging Party.

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bargaining representative and (k) discharged seven named employees because of their union
activities.

The Respondent’s answer, as amended at the hearing, denied the material allegations
of the complaint and on September 24, October 16 through 18, and October 21 through 24, a
hearing was held before me in Brooklyn, New York.

Upon the evidence presented in this proceeding and my observation of the demeanor of
the witnesses and after consideration of the briefs filed by all parties,3 I make the following:

Findings of Fact

I. Jurisdiction

The Respondent, a domestic corporation having its principal place of business located at
107 Northern Boulevard, Great Neck, New York, has been engaged in the performance of
asbestos abatement and other construction activities for various customers. During the past
calendar year, the Respondent purchased and received services from Asbestos Transportation
Co., Inc. (ATC), a New York corporation, in excess of $50,000 in value, and during the past
year, ATC has hauled approximately 31 loads of asbestos waste for the Respondent, for which
ATC charged it $2,800 per load for each load of asbestos waste hauled to landfills located
outside New York State. It was stipulated and I find that for the purposes of this proceeding the
Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
II. The Labor Organization

It was stipulated and I find that Local 78, Asbestos Lead and Hazardous Waste Union,
Laborers International Union of North America, AFL-CIO (Union) is a labor organization within
the meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. Background

The Respondent has been engaged in asbestos abatement at two jobsites material to
this case. One site is located at Monroe College in the Bronx and the other is at Pilgrim State
Psychiatric Center (PSPC) on Long Island. Both jobs began in about March, 2002. The PSPC
jobsite consists of about 40 small empty buildings. At both jobsites the work performed included
the preparation of the worksite including the placement of plastic sheets around the work area,
the removal of asbestos from pipes, walls and ceilings, the containment of the asbestos in bags,
and the transportation of the items removed to a containment bin or truck outside the work area.
While working in the containment area the employees wear protective suits and masks with
respirators. All employees must be licensed asbestos handlers and produce their license to their
supervisor when they report to work each day. The supervisor retains the license during the
3 The Respondent’s amended brief, filed after the time to file briefs had expired, contains
matters inadvertently omitted from its original, timely filed brief. I have considered the amended
brief over the objections of the General Counsel and the Union. There is no prejudice to any
party where an entire section of the Respondent’s brief had been inadvertently omitted from the
original brief and no reference therein has been made to the briefs of the opposing parties. The
Respondent thus did not seek to take advantage of this filing.

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workday.

The president and general manager of the Respondent is Emil Braun. An admitted
supervisor is James Noel. The Respondent runs its jobsites with a “supervisor” and a foreman.
At issue are the supervisory and agency status of Rosa Alvarez who was designated
“supervisor” by Braun, Segundo Moposita who has been referred to as “foreman”, and Herb
Anderson.

The Union has been attempting to organize the employees of the Respondent since
about March, 2002. It has sought to enlist the aid of “salts” – employees who obtain a job at
Extreme and then organize their co-workers.

B. The Alleged Supervisory Status of Rosa Alvarez and Segundo Moposita

1. Legal Principles

Section 2(11) of the Act provides:

The term “supervisor” means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.

Section 2(11) is phrased in the disjunctive. The exercise of authority requiring
independent judgment with respect to any one of the actions specified is sufficient to confer
statutory supervisory status. Queen Mary, 317 NLRB 1303 (1995).

2. Rosa Alvarez

On April 19, Rosa Alvarez began work at PSPC. Braun introduced her to the workers as
their “supervisor.” The Respondent argues that this introduction does not necessarily imply that
it conferred on her the Act’s definition of “supervisor.” Rather, it argues that Braun was referring
to her as its licensed asbestos supervisor. I need not determine this issue as her job functions
establish that she was a statutory supervisor within the meaning of Section 2(11) of the Act.

Alvarez was the highest-ranking Respondent representative on the jobsite. Laser Tool,
Inc., 320 NLRB 105, 108 (1995). She received orders directly from Braun, and she told the
foreman what work must be done. It was her admitted responsibility to make sure that the job
was performed properly “under the regulations”, and was in charge of the day-to-day operations
at the worksite at which she “judges” production. Manno Electric, 321 NLRB 278, 290 (1996).
She did no manual work at the jobsite. She also maintained the important log books which
recorded the names of the workers and their hours of work, and retained their licenses during
the work day.

Alvarez denied having the authority to hire. However, she stated that she recommended
to Braun that Leon and others be hired and they were. The Respondent argues that this was a
ministerial act in that she reported to Braun that prospective workers appeared at the jobsite.
According to her, Braun asked whether they were needed, and he directed her to hire them.

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This indicates that Braun needed more workers but left to her the actual hiring. In addition, the
fact that Braun asked her whether they were needed indicates that he sought her
recommendation as to the workforce requirements of the job, and that she effectively
recommended their hire.

The testimony regarding the hire of Morales also establishes that Alvarez had the
authority to hire, which she exercised. Alvarez testified that she did not hire Morales, and would
not have because of her previous work experience with him. She described that they could not
work together on a prior job, he did not follow orders, and in fact she recommended his
discharge from that job. It is inconceivable, therefore, that she would have stood by, as she
stated, and permitted manager Mike Luther to hire Morales. I accordingly find, as Morales
testified, that Alvarez hired him for the Monroe College job.

Alvarez denied having the authority to lay off employees. She stated that at the start of
each job, Braun assigned ten workers, telling her that she has a certain number of hours or
days to complete the job. At the end of the day she tells Braun how much work was completed.
If fewer workers were needed the next day, Braun tells her to send the workers to another site.
But she also tells Braun that she needs more employees to finish the job. She further stated that
if Braun directed her to lay off a certain number of workers, he would tell her which named
employee should stay, but then she had the discretion to lay off others of her choosing, using
independent judgment in making the choice of which workers to let go. She also laid off Ortega
and her two female co-workers because the work was too difficult. This evidence establishes
that Alvarez exercised Section 2(11) authority in laying off employees.

The evidence also establishes that Alvarez had the authority, which she exercised, to
warn employees, discharge them and recall them from layoff. Braun’s August 5 letter to the
Department of Labor stated that Alvarez discharged Morales. She also stated that she warned
Leon and Vargas about their poor work and ultimately dismissed them for that reason. C.P.
Associates, Inc., 336 NLRB No. 12, slip op. at 6 (2001) (Coelho). These actions involved the
exercise of independent judgment with Alvarez making the determination that the work of Leon
and Vargas was of poor quality, and that the work was too difficult for the female employees.
She recalled to work Ortega’s two colleagues. There is no evidence that Alvarez consulted with
Braun or Noel concerning her decision to discharge Leon and Vargas and lay off the three
female workers. She also exercised independent judgment in granting time off only when the
work permitted an employee to be absent. On those occasions she requested that the employee
give her one week’s notice.

Based upon all of the above, I find and conclude that Alvarez is a supervisor within the
meaning of Section 2(11) of the Act.

3. Segundo Moposita

Moposita was the foreman at PSPC and was given directions by Alvarez such as what
work to do each day. Moposita, in turn, told the employees what they had to do, for example,
erect tents, and remove asbestos, showed them how to do the work if they were not familiar
with it, and where to work. He directs about 35 employees each day, assigning them to different
areas once their work in one area was completed. Employee Betsey Arruda observed Moposita
watching the work performed by the employees and saw him give them materials when needed.
Arruda did not see Moposita perform cleaning work. Employee Vargas stated that Moposita
checked his work and gave him instructions in performing the work. Neither he nor Morales saw
Moposita doing demolition work, sweeping or bagging asbestos materials. Rather, they saw
Moposita come to the site to check the work and then leave.

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Moposita testified that he has no authority to hire, fire or give time off to the workers.
However, he stated that he assigned work to Arruda and Ortega and checked their work. He
stated that if the work was not done correctly he tells the employees to correct it, but has not
discharged or suspended anyone for that reason. If something goes wrong at the work site or if
he has a problem with an employee he tells Alvarez. He also reports the status of the work to
her since she is often not inside the work area.

Moposita testified that in addition to his duties assigning jobs and checking the work
performed, as a licensed asbestos handler he does manual work consisting of removing
asbestos. He estimated that he does such manual work about 30% of the time, while the
remaining 70% of his time he watches the workers to make certain that they are working
properly.

In sum, Moposita is the foreman directly involved in the actual work being performed. As
such, he is responsible to ensure that the work gets done. In furtherance of this, he assigns
employees to perform the work, he reassigns them to different areas, and checks their work. He
also requires that they redo work that they did improperly. His authority over 35 employees and
the fact that 70% of his time is spent supervising those workers convinces me that he
possesses the supervisory authority to assign and responsibly direct employees under his
charge. It is clear that in the exercise of such authority Moposita uses independent judgment.
The performance of asbestos removal work is involved and requires an adherence to various
federal, state and city regulations. The specific instructions given by Moposita relate to his
determination that the work he directs will be done in accordance with the regulations. Demi’s
Leather Corp., 321 NLRB 966, 974-975 (1996).

I accordingly find and conclude that Moposita is a supervisor within the meaning of
Section 2(11) of the Act.

C. Pilgrim State Psychiatric Center

1. Jerzy Sokol and Andrej Siemak

a. Jerzy Sokol

Jerzy Sokol and Andrej Siemak worked for the Respondent at PSPC from March 20 to
April 19.4 On April 18, Sokol and Siemak discussed the Union in their car during lunch. They
said that their pay was lower than they would receive if they received Union wages. Sokol stated
that no management representative heard their conversation.

That evening, Sokol, a member of the Union, prepared a flyer at his home with the help
of his son. Siemak was also present. The flyer stated:

UNION YES
Working as Asbestos Handler is
Dangerous and Hard.
We Deserve:
Union Wages
Medical Coverage
4 They have been referred to by other employees as the “Polish workers”.

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Dental Plan
Vision Plan
Annuity
Pension
And Work with Respect and Dignity
WE WANT UNION REPRESENTATION
ON THIS PROJECT

The following day, April 19, Sokol and Siemak ate lunch and then put on shirts that said
“Local 78 organizer” and caps that said “Local 78.” They then distributed the flyers to about 15
co-workers who were eating lunch. While handing out the flyers, Sokol told the workers that the
job they were working at was not a union job. He also told them that their pay rate of $15.00 per
hour was too low compared to Union wages which are $23.15, and that if the work being done
was “union work” they would receive medical coverage, a dental plan and a pension fund.

Sokol testified that he saw Alvarez sitting with a group of workers eating lunch, and that
he approached them and told them the same as above, adding that if there was a union,
working conditions would be better and they would have a shop steward. The employees, not
including Alvarez, applauded his statement.

Employee Betsey Arruda testified that she was seated at lunch with other employees
including Maria Ortega, Raphael, Luis and Alvarez, and they were given the flyer. The
employees applauded when Sokol and Siemak said that they would have benefits such as a
good salary, respect, an annuity and a dental plan if they had a union. Arruda stated that
Alvarez was present during this time, and she said that “the union is good but here it’s not
permitted to have a union.”

Sokol stated that while he was distributing flyers an “inspector monitor” took one or two
flyers and left in his car. Before lunchtime ended, Sokol and Siemak took off their Union garb.

Ten minutes after the “inspector monitor” was at the worksite, Herb Anderson arrived in
a van. Sokol testified that Anderson had not seen him distributing flyers, but he had seen
Anderson at the site before, inspecting the buildings after they were finished. Employee Maria
Ortega stated that she had seen Anderson checking her work. Siemak testified that sometime
before that day he had seen Anderson fire foreman Christof Yakobowsky. Alvarez testified that
a Polish worker told her that Anderson fired “Chris” and that Anderson was “here to see if
anybody is not working … and he is going to fire….”5 Alvarez testified that Anderson worked
directly for the owner of the property. Braun told her that Anderson is “part of the owner …
management .. something.”

Alvarez, who began work for the first time at this jobsite that day, was called to the van
by Anderson, and they spoke for about one minute. Alvarez then called Sokol to the van.
Anderson said “out”. Sokol asked “why, I am a good worker.” Anderson repeated loudly “out,
out” and told Sokol that he was fired. Sokol testified that Alvarez gave Sokol his asbestos
license, saying, “I am very sorry. This is not my business. I’ve been working here only for a few
5 The Respondent objects to my consideration of this evidence concerning Yakobowsky as
hearsay. However, no hearsay objection was made at the hearing. In the absence of an
objection from the party against whom the evidence is offered, hearsay is admissible and
becomes part of the record. See Alvin J. Bart, 236 NLRB 242, 243 (1978). In fact, Alvarez’
testimony concerning “Chris” was received during the Respondent’s examination of her.

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hours.” She also told him “give me your license. You are not working here anymore. No more
job.”

Sokol left the jobsite. He called the Respondent’s office, informed the person answering
the phone that he had been fired,6 and asked that a check be mailed to him.

Arruda testified that she heard Anderson ask Alvarez to give him the license of the
person who handed out the flyers and she did so. Arruda then heard Anderson tell Sokol to go
home. After lunch, Arruda asked Alvarez why Sokol was fired. Alvarez replied “Because he’s
with the union. It’s not permitted to speak about the union.” Arruda argued that such activity
occurred during the lunch hour. Alvarez answered “It was not permitted. Emil Braun didn’t like
that discussed. He did not permit the people from the union to infiltrate the work premises.
Braun had a preference for people who were not union members. At work it is not permitted that
people who belong to the union work on the premises.”

Alvarez testified that at lunch on April 19, her first day at the jobsite, she saw two men
handing out flyers. She did not know that they were employees of the Respondent. After they
finished doing that they changed into work clothes and one of the men told her not to worry, that
this was a very small job. She replied that the man should not worry, everything is all right, and
“we just need to work.” Herb Anderson arrived at the job, called Alvarez to the car and told her
that “somebody was handing flyers over here.” He ordered her to “get me who was handing out
the flyers.” One employee told Alvarez that the Polish workers had distributed the flyers and
pointed to them. Alvarez told Anderson that the employees said that the Polish workers had
done that. Anderson directed her to call them over. Alvarez did so and Sokol approached.
Alvarez asked him who he was and asked him to pick out his license from the ones she held.
Sokol took his license, and Alvarez gave it to Anderson. Anderson told Sokol that he was fired.
When Sokol questioned his discharge, Anderson said that he did not want anyone doing
anything on his property without him knowing about it. Alvarez was “shocked” when this
occurred and asked Anderson what was going on. Alvarez quoted Anderson as repeating many
times “If somebody keep on doing this and if one of them… If I know who is keeping doing it,
then everybody is going to get fired.”

Alvarez did not contact Braun immediately because she had no way of doing so. Later,
however, she told Braun what happened. He told her to “stand by”, and he would find out what
the problem was. Braun later told her they could do nothing about the firing of Sokol.

Alvarez denied speaking with anyone from the Respondent between the time the flyers
were distributed and Anderson’s arrival. She further stated that no other supervisor of the
Employer was present during the lunchtime distribution of flyers. She denied speaking to Sokol
after Anderson fired him.

b. The Agency Status of Herb Anderson

The Respondent began work at the PSPC in March, 2002, pursuant to an oral
agreement with Active Removal Corp., whose contact person with the Respondent is Herb
Anderson.

The logbook for May 1, 2002 contains the notation: “Vinny & Herby & other project
6 Sokol also testified that when he called the office he was informed that he was fired. I find
that it is more logical that Sokol called and told the office that he was fired.

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monitor on site doing visual. Request on little extra clean on bldg. 58 & they be prepare for finals
on 57-58.”

Section 2(13) of the Act provides:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible for
his acts, the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be
controlling.

The Board applies common law principles of agency in determining whether a person is
an agent under the Act. Such principles incorporate the doctrine of apparent authority.

Apparent authority is created through a manifestation by the
principal to a third party that supplies a reasonable basis for the
latter to believe that the principal has authorized the alleged agent
to do the acts in question. Thus, either the principal must intend to
cause the third person to believe that the agent is authorized to
act for him, or the principal should realize that this conduct is likely
to create such belief. Two conditions, therefore, must be satisfied
before apparent authority is deemed created: (1) there must be
some manifestation by the principal to a third party, and (2) the
third party must believe that the extent of the authority granted to
the agent encompasses the contemplated activity. Citations
omitted. Pratt Towers, Inc., 338 NLRB No. 8, slip op. at 12 (2002).

Anderson clearly had some position of authority at the jobsite. Braun testified that
Anderson was the “contact person” with Active Removal Corp. for which the Respondent
performed work at the location. I credit the uncontradicted testimony of Siemak that Anderson
discharged foreman Yakobowsky, and I also credit Ortega’s testimony that Anderson had
checked her work. Under the above standard, therefore, by permitting Anderson to take
personnel actions relating to its employees the Respondent caused employees to believe that
Anderson acted in its behalf. In discharging employees and checking their work Anderson acted
in effect as a supervisor of the Respondent. Anderson therefore acted with apparent authority in
firing Sokol. The Maumee Stone Company, 259 NLRB 1168, 1171 (1982).

It is particularly important that the Respondent did not disavow Anderson’s discharge of
Sokol or reverse it. Alvarez did not attempt to stop Anderson from firing Sokol. In this regard I
understand that Alvarez stated that she was “shocked” at the discharge by someone unknown
to her. However, she could have asked Sokol to remain at the jobsite while she checked with
Braun. Although she could not contact Braun immediately, Alvarez could have had him delay his
departure until she reached Braun. Further, when Alvarez told Braun that Sokol had been fired,
he told her to “stand by” and that he would find out what the “problem” was. He obviously then
learned why Sokol had been fired and then told Alvarez that nothing could be done about it.

Ratification is defined as the affirmance by a person of a prior act
that did not bind him but which was done or professedly done on
his account, whereby the act, as to some or all persons, is given
effect as if originally authorized by him.
Affirmance is defined as either (a) a manifestation of an election
by one on whose account an unauthorized act has been done to
treat the act as authorized, or (b) conduct by him justifiable only if

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there were such an election. An affirmance of an unauthorized
transaction can be inferred from a failure to repudiate it. Service
Employees Local 87 (West Bay Maintenance), 291 NLRB 82, 83
(1988).

It is obvious, therefore, that Braun, having learned that Sokol was fired for distributing
union flyers, was satisfied that he had been discharged. Braun ratified and acquiesced in
Anderson’s conduct in firing him by doing nothing to overrule the discharge of his employee or
reinstating him to his former position. “The Board has held that an employer’s failure to disavow
and/or discipline an employee for conduct engaged in with company knowledge may warrant an
inference of apparent authority.” Dentech Corp., 294 NLRB 924, 926-927 (1989). In addition to
being responsible for Anderson’s conduct under the doctrine of apparent authority, the
Respondent’s affirmance of and failure to repudiate his actions constituted ratification of those
actions. Dentech, above, at 928. See Richlands Textile, Inc., 220 NLRB 615, 619 (1975), where
a state legislator with no connection to the respondent wrote a letter to its employees
threatening that the respondent would close its operation in the event of its unionization. The
legislator was found to be an agent of the respondent where the employer did not disavow his
actions.

c. Andrej Siemak

Pursuant to the apparent practice in the industry, Siemak presented his license to his
supervisor Miguel Marco at the beginning of the workday on April 19.7 He distributed flyers with
Sokol at lunch that day as set forth above, and stated that Braun did not see him doing so.

Siemak returned to work at about 1:30 p.m., and was removing asbestos while wearing
a suit and mask. Fifty minutes later, Braun entered the containment area not wearing a suit or
mask and approached Siemak. According to Siemak, Braun had foam in his mouth, “wild eyes”,
and screamed “fuck you, fuck you, get out now, no more that’s it” while at the same time
shaking his fist at him. Braun was holding Siemak’s license and then pushed Siemak, who left
the area and turned to see Braun tear up the license. Siemak picked up the pieces and put them
in his pocket. In rebuttal testimony, Siemak stated that when he was fired by Braun he asked
Braun to return his license. Braun then tore it up.

Outside the containment area, Siemak attempted to wash his hands at a fire hydrant,
which according to him was a legal requirement before leaving a contaminated area, but Braun
pushed him, preventing him from using the hydrant, demanding that he “go, go, go out.” Siemak
put his tool belt on the floor and removed his suit and mask. When he reached for the tools,
Braun said that they were his tools, but Siemak grabbed them. Siemak also tried to take his
hard hat but Braun pushed him away.

It is the Respondent’s defense that it fired Siemak for having an improper license. The
license Siemak presented to his supervisor each day that week prior to his Friday discharge
was a Xerox paper copy of a current license which was due to expire the following month, in
May, 2002. Sometime prior to the expiration of a license, the asbestos handler must take a
“refresher” course. Siemak had taken such a course, and had a document from that course
which he presented on April 19 to his supervisor with the Xerox copy of his license. He did not
present his original license to his supervisor that morning because it had been mailed to Albany
7 Marco was replaced by Alvarez before lunch that day.

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for the issuance of a renewal license upon the expiration of his current license.8 The original
license is encased in plastic and bears the stamp of the New York State Department of Labor
(DOL).

Siemak was aware of no rule of the Respondent which required that the employee must
have an original license or a duplicate in plastic with a DOL stamp on it.

Siemak stated that Braun’s destruction of the copy of his license prevented him from
working elsewhere since the original license from which he made the copy was in Albany.

Alvarez testified that on April 19, Braun visited the worksite and asked to see the
licenses in order to determine which employees were absent. He noticed a paper copy of a
license and asked who the worker was. Alvarez said that she did not know. Braun took the
license and approached Siemak.

Alvarez testified that she was permitted to work at other asbestos removal companies
with a paper copy of an asbestos license similar to Siemak’s, but that the Respondent did not
permit employees to work with such a copy. Rather, a duplicate license having a DOL stamp is
required to work for the Respondent. Armando Questa, however, said that when his license was
being renewed he presented a paper from the refresher course together with a copy of his
license to the Respondent’s supervisor, and he was permitted to work. Those appear to be the
same documents that Siemak presented to his supervisor and with which Siemak was permitted
to work in the days before his discharge.

DOL Regulation 56-2.2 states: “Any person employed by a contractor on an asbestos
project shall have an appropriate asbestos handling certificate or a copy thereof in his/her
possession at all times during his/her work on the project.”

Alvarez stated that from the time she began work with Extreme she was aware of the
Respondent’s policy that such a stamped copy was required. She stated that Braun frequently
checked licenses to make sure that the licenses were current. She further stated that if a paper
copy was presented the worker would be sent home with instructions that he could return when
he had an original license or a duplicate with a DOL stamp. Braun sent home about four
employees who did not have the license he required. Alvarez stated that during her nine years
of full-time employment with other companies that Braun was involved with, prior to her work for
Extreme, this policy of requiring original licenses or duplicate licenses with a stamp did not exist.
Alvarez has a personal policy of advising workers at least one month in advance of the
expiration of their license. She does that so that they can obtain the proper license that Braun
requires. Of course she did not do that in this case with Siemak because Siemak was fired on
her first day at work.

2. Betsey Arruda

Arruda worked at PSPC from March 18 to August 29. She testified that in about late
March, admitted supervisor James Noel asked her if she was a member of Local 78 and
whether she had a union book. She said “yes”, adding, however, that a union was not needed
and “the union goes bad over here.”

Arruda further testified that two months later, on Friday, May 17, Noel was preparing a
8 Albany, the capital of New York State, is the headquarters of the DOL.

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list of employees who would perform weekend work. He told her “I want you to say that if you
are in the union. If Emil Braun finds that out you’re going to have to go home and it’s going to
happen to you what happened to the Polish workers the same thing will happen to you. I’m
letting you know because I have to make a lot of calls tonight. And it’s going to be found out if
it’s true or not that you’re in the union.” Arruda replied that the Union did not send her to work for
the Respondent but Noel could do whatever he wanted.

One week later, at lunchtime on May 24, Arruda and co-worker Maria Ortega put on
shirts and caps which bore the Union logo. They approached their co-workers, gave them the
same flyers as Sokol and Siemak had handed out, and told them that if they belonged to a
union they would have the benefits set forth in the flyer, including a better salary. Arruda also
gave them a petition which would “unite for a union.” Ten or twelve employees signed the
petition.

During this activity, Alvarez and Moposita were eating lunch in a company truck some
distance from the other workers. Arruda stated that Alvarez saw her distributing the flyers but
could not see the petition-signing activity. When the lunch period was ending, Alvarez called
Arruda and Ortega to the truck and asked what they were doing. She also asked to see the
flyer. Arruda gave her one and said that they were engaging in this activity in order to obtain
better benefits and a union salary. She added that since this was their lunch hour they were not
doing anything wrong. Arruda quoted Alvarez as saying “don’t you remember what happened
with the two Polish men. If Emil Braun finds out he would throw us out.” Alvarez told the two
women, however, that she would not tell Braun about their union activities. Ortega testified that
Alvarez said that what they were doing was their problem.

Following lunch that day, Arruda returned to work in the basement with Ortega, William
Leon, and Douglas. Arruda testified that Alvarez walked by with Noel who asked why she
undertook “the work of getting into the union,” adding that if Braun were to learn that they were
working for the union “he was going to throw us out.” Noel also said “see what happened to the
Polish people.” Noel added, however, that if they become union members they could continue to
work and Noel and Alvarez would not tell Braun. Noel asked Arruda to promise that she would
not “do it again.” Alvarez told her that if Braun knew employees were “infiltrating into the
employer from the union the persons responsible within the company would be dismissed like
the Polish workers.” Arruda and Ortega replied that if they would not tell Braun that would be
“fine.” Alvarez received a call on her radio and she and Noel left.

Moposita stated that he was present when Noel spoke to Arruda, but did not know if that
was on May 24. He did not hear Noel ask her if she was a union member.

Ortega testified that she heard Noel ask why Arruda has done what she was doing to
him, saying that he believed that they were friends. Noel asked her to promise that she would
not continue to organize for the union. They agreed. Ortega stated that the call Alvarez received
was from Braun who then left the area. A short time later, Ortega and Arruda were told by
Alvarez that Braun knows “everything” and that she had told him that they were organizing for
the union during lunch. However, Alvarez told the workers that Braun said that they could
continue working.

Arruda testified that on the same day, May 24, she asked Alvarez for permission to be
absent from work the following Tuesday, May 28, because of a court appointment. Alvarez
agreed, saying that she should report to work on Wednesday, May 29. Ortega testified that she
heard Arruda tell Alvarez that she would not come to work the following day because of a court
appointment.

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Arruda did not work on May 27, Memorial Day. She stated that in the morning of Mary
28, she gave Ortega a notice of hearing from the Workers Compensation Board which stated
that she was to report for the hearing on May 28 at 11:30 a.m.9 Ortega testified that she gave
the document to Noel that morning. At hearing, the Respondent produced Arruda’s personnel
file, which contained the original notice of hearing.

Arruda reported to work on May 29 and was greeted by Alvarez and Braun. This was
Arruda’s first work day following her distribution of Union flyers. Braun said that she did not work
the day before. Arruda replied that she had a court date and had received permission from
Alvarez to take the day off. Braun responded that she should “go look for work at court because
I have no more work for you here.” Arruda explained that she had evidence that she asked for
permission. Braun answered that it did not matter and that she should go home. Arruda told
Alvarez that she sent the document with Ortega who gave it to Noel. Alvarez replied that that
was Braun’s problem.

Arruda testified that on the same day that she was absent, employee Telmo Moncayo
was also absent. They both returned to work the following day, May 29. She was discharged,
but Moncayo was asked to return the next day with proof of why he had been absent. The
Respondent’s logbooks support that testimony. They show that Moncayo did not sign in on May
28 or 29, but on May 30 he signed in, thereby proving that he did not work on May 28 or 29, but
was permitted to work on May 30.

Ortega testified that in about late May, prior to her distribution of the flyers, she
requested and received permission from Alvarez to take a day off to pay a summons. Ortega
returned to work the following day and received no discipline. She was also not required to
provide proof of the reason for her absence.

Alvarez testified that at lunchtime on May 24, she saw Arruda and Ortega give flyers to
employees, and that they offered her a flyer. Moposita also testified seeing Arruda distribute
flyers. Alvarez denied seeing any employees sign a petition. Alvarez told them to do whatever
they had to since it was their lunch time and she did not care. However, she added that “I don’t
think the boss would like to know that somebody is spying in here.” She defined “spying” as
“going to the union to create problems in here.” She further explained that she did not believe
that Braun would like the fact that they were creating problems at the jobsite, reporting problems
to the Union, “because the union is put in to create a problem.” Alvarez also told them that she
did not believe that Braun would appreciate that they were being paid $15.00 per hour by the
Respondent and then receiving from the Union the difference between that amount and the
Union’s rate.10 Alvarez told the two women that they could do whatever they wanted, and that
although she knew what they were doing she would not tell Braun. Further, Alvarez denied
telling the two women that Braun knew what they were doing or that they would be “thrown out.”
Alvarez also denied telling Braun what she observed that day.

Alvarez stated that on May 28, Braun called her and asked whether all the employees
were present. Alvarez replied that Arruda was absent. Braun answered that they need to get the
9 Arruda’s pre-trial affidavit stated that she gave the letter to the Respondent. That clearly is
an error. Arruda corrected the mistake at hearing by testifying that she told Alvarez that she
would send the letter with Ortega.
10 Alvarez was aware that the Union offered employees who act as in-plant organizers the
difference between their salaries with the Respondent and the Union wage rate.

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job done and they “need people” so she would not be employed there any longer. Alvarez told
him to “come and take care of that problem yourself.” When Arruda reported to work the next
day, Alvarez was busy signing in the workers and giving them directions. She saw Braun and
Arruda speaking and did not involve herself in their conversation.

Alvarez testified that she has the authority to give employees permission to take a day
off, and that Arruda told her that she had to pay a summons in court and needed to take a day
off. However, according to Alvarez, Arruda did not mention that she needed a specific day off,
did not tell her that she would be absent on May 28 to appear in court. As a result, Alvarez did
not give her permission to take that day off. Alvarez denied seeing the notice of hearing and
further testified that Noel was not present at PSPC that day.

Employee Iveth Tapia testified that she knew of no employee who was discharged for
being absent from work.

3. Maria Ortega

Ortega was employed from March 27 to June 15 as an asbestos handler. She testified
that on her first day of work she attended a meeting with about 60 employees at which Noel and
Braun spoke. Noel told the workers that if the union came in they would “all wind up going
home.” Braun told them that if the union came in they would all go home and there would be no
more work. None of the employees responded to those comments. Noel did not testify. Braun
did not deny those remarks.

On May 24, Ortega and Arruda distributed flyers and obtained signatures on a petition
as set forth above. Ortega stated that in mid June, she was discharged by Alvarez who said that
she was told to do so by Braun. Thereafter, Alvarez asked a co-worker for Ortega’s phone
number. There was some difficulty establishing contact but ultimately, according to Ortega, she
called Alvarez who told her that there was no more work for her.

Foreman Moposita testified that in about June, 2002, he and Alvarez were in the work
area when they heard Ortega tell her co-workers that they were working too fast, and they must
work slower. At first, Moposita testified that Alvarez made no comment about Ortega’s
statement, but then testified that Alvarez told him that they should be “careful” about that type of
comment. Ortega was employed for another three weeks before she was discharged. Alvarez
testified that she and Moposita approached an area where employees were working in a
containment area wearing suits with hoods and respirators which covered their faces. She
heard Ortega telling co-workers Leon and Vargas that “we are working too fast. We have to
slow down” because the job would soon be over. Moposita asked Alvarez if she heard that
comment. Alvarez said she did and agreed that Ortega made that statement. Alvarez then said,
“we have to be careful with that.”

Ortega testified that while she was working in the basement with Leon and Vargas,
Alvarez and Moposita approached their work area. Ortega denied telling her two co-workers that
they must work slower. Ortega denied speaking to Alvarez on the day before her discharge
concerning how fast she was working.

Alvarez testified that Ortega was a “pretty good worker” when she started work, however
her work deteriorated for some unknown reason. Alvarez stated that when demolition began to
be done at the jobsite she deemed that work too difficult for the three female employees to
perform so she gave them a “couple of days off” until after the heavy work was done. Alvarez
recalled the other two women, Castillo Piedad and Sonia Rivera, to work after one or two days’

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layoff.

In contrast, Alvarez stated that she told Ortega not to return until she was called back
because there was no work for her and because she “needed to fix the staff,” but that she would
recall her when there was work. At hearing, Alvarez testified that the reason she told Ortega not
to come in was because decontamination work was being done at that time and there were not
enough decontamination showers for everyone. Alvarez stated that she was going to recall
Ortega one or two weeks after her layoff but was told by other employees that she was already
working someplace else in Pennsylvania. Alvarez did not try to call her. Alvarez stated that
shortly thereafter, employees called to quit work giving various excuses. She was told that
Ortega took them to work in Pennsylvania.

4. Caryl Vargas

Vargas was employed from mid May to late June, 2002. He testified that in late May, he
rode in the Respondent’s truck with foreman Moposita and William Leon. During the trip,
Moposita asked him if he was a union member. Vargas replied that he was. Moposita then
warned him to be careful, adding that if Braun finds out that he was a union member he was
“powerful and could throw us out of the company.” Moposita also said that Braun preferred to
employ workers who were recently licensed as opposed to older employees since the new
workers do not have a union. Leon testified that during the trip, he asked Moposita how long the
work at the site would last. Moposita replied that it would least at least one year “if the union
doesn’t bother us” but that the union would not be a problem since Braun was a “very powerful
person.” Leon heard Moposita ask Vargas if he was a union member and also heard Vargas say
that he was.

Moposita testified, denying that he told the men that the job would last more than one
year if the union did not bother them, or that the Employer is powerful and the Union could do
nothing. However, he conceded speaking about the union with them during the trip. He said that
they told him that they were members of the Union. They asked him why the Union would not let
them work without bothering them, and complained that the Union did not give them work, but
rather they had to look for work. Moposita said that he did not “exactly” ask Vargas if he was a
member of the Union. Rather, they all spoke about their union memberships (although Moposita
did not tell them which union he belonged to), and Vargas volunteered that he was a member of
the Union. He further conceded that he told them that the job would last “for a while”.

In June, Vargas signed a petition for the Union given to him at lunch by Arruda, set forth
above. He did not wear a union shirt or hat to work.

Vargas stated that the bathrooms at PSPC were some distance from the work area. On
the day before Vargas’ discharge, Moposita told all the workers that someone had defecated in
the work area. Moposita did not identify the person, but Vargas learned from his co-workers that
it was Luis Moran. No one had actually seen who had defecated. Moposita told Vargas to clean
it up. Vargas did not protest that Moran should perform that task, and Moposita did not accuse
him of defecating. That same day, he was asked by Alvarez “why don’t you work?” Vargas
replied that he was working.

The following day Vargas was discharged. He stated that he and Leon were fired by
Alvarez who said that she did not need their services. Moran was also fired at that time. Vargas
stated that on the day of his discharge, he and his co-workers were told by Moposita to remove
asbestos from a work area. Moposita told them that whether they remained employed depended
upon their performance at this task. After completing the job, Moposita checked the work and

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said it was “fine”. However, Alvarez said the work was no good.

There was some evidence that the men used the “wet method” to remove the asbestos –
by wetting down the area to prevent the spread of asbestos fibers pursuant to Moposita’s
instructions. Later, Alvarez inspected the job and told them that they should not have used the
wet method.

Moposita could not recall telling Leon and Vargas that their work was acceptable.
However, he did recall telling Alvarez a few times that their work was not acceptable, but that
comment was not made on their last day of work.

Alvarez testified that Moposita told her that someone defecated in the work area. She
went to the area and asked certain employees who did it. They said that it was Vargas. Those
workers had already complained to her several times that they did not want to work with Vargas.
Alvarez told Moposita to confront Vargas, and if he was the culprit, to tell him to clean it up.
Moposita testified that he was told by other workers that Vargas defecated at the worksite. He
told Vargas that he heard that he had defecated, and that he must clean it. Vargas agreed to
clean it and he did.

Moposita denied telling Braun which employees were union members, and he did not
know if he saw Alvarez telling Braun the names of workers who were union members.

Alvarez testified that she spoke to Vargas about his slow work performance only a few
days after he began work. She told him about three times that if he did not want to work he
could leave. She also found that he was not in the area that she assigned him to, and when
questioned told her that he was looking for a tool.

5. William Leon

Leon worked for the Respondent for about one month from early May to mid June. He
stated that he wore a Union sweater on his first day of work. Alvarez told him that if anyone saw
him with “that type of insignia” he could have “problems with the boss” and he could be fired.
Vargas essentially corroborated Leon’s testimony. Leon turned the sweater inside out. Alvarez
could not recall if Leon wore the union shirt on his first day of work, but in any event she denied
telling him to remove his shirt, and further denied saying that if the boss sees him with the shirt
he would fire him. Her only recollection of his first day is that she told him “the job is yours, just
work for it. Go to work.”

Leon signed a petition with Vargas for the Union at Arruda’s request at lunchtime as set
forth above. He stated that on his last day at work, Moposita instructed him on the performance
of some work. Later, Moposita checked their work and said that it was “fine.” They used water to
help in removing the asbestos because the work had to be done as quickly as possible. Later,
Alvarez checked the work and told Leon that the work he did was not properly done, noting that
they did not have to use water to remove the asbestos. Alvarez told Leon that he knew that the
job should not have been done with the use of water.

When Leon was fired, he was told by Alvarez that she did not need him but that she
would call him in the future. She never called thereafter. Leon testified that prior to Alvarez’
criticism of his work on the day he was discharged, he received no other complaints about this
work. However, he conceded having been told by Alvarez prior to that time that she wanted him
to work faster and that if he did not do so he would have to go home. However, he noted that
she said that to nearly all the workers with him at that time. Leon never heard that other

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employees refused to work with him because he was not a good worker. He was fired on the
same day that Vargas was discharged.

Moposita testified that Leon was a new employee who did not yet have sufficient
“mastery or knowledge” of the work. He stated that Leon told him that Alvarez asked him to
keep up with the work pace of the other workers. He did not recall telling Leon how to perform
his work on his last day on the job.

Alvarez testified that Leon is very young and very slow. She found that he was not
familiar with the work that had to be done and she told Moposita to train him and “give him a
chance.” On one occasion, Leon admitted not knowing how to build a tent but Alvarez excused
his lack of knowledge and instructed Moposita to assign him to work with an experienced
employee. Thereafter, Leon became more able but, according to Alvarez, still did not want to
help. She urged him not to hurry but to work at the rate of speed of his co-workers. She
received several complaints from his co-workers who said that they did not want to work with
Leon because he was not working at their pace. The workers who complained also complained
about Vargas, and said that they did not want to work with him either. Alvarez testified that she
told Leon, after two weeks of work, that he now has experience and has been trained but he is
not working at a “normal” pace with his co-workers. She asked him why his co-workers did not
want to work with him. Leon replied that he did not know, but that he would try to improve.

Alvarez testified that she inspected Leon’s work on his last day and found that more
clean up was needed. She testified that she could no longer handle the many “headaches” she
had regarding Leon, including Leon’s co-workers’ constant complaints about his work, and their
refusals to work with him because he “did not want to work.” Alvarez told him that there was no
more work for him, and that she would call him if there was another job. She did not mention the
other employees’ complaints or that his work on the last day had been insufficient. Leon told
Alvarez that he wanted to work at another jobsite. She offered to call the supervisor at the other
site but did not. Her explanation at hearing was that it was up to Leon to apply for the job and it
was the other supervisor’s decision to accept him or not.

D. The Monroe College Site

Favio Morales

Morales testified that an employee of Extreme suggested that he apply for work with that
company. When he was hired he called Byron Silva, the Union representative, and was told that
in-plant organizers were needed to help the workers. Silva told him to keep working and that if
he observes any safety violations he should call the agency concerned.

Morales was hired by Alvarez as set forth above. He worked as an asbestos handler for
only 1½ weeks, from May 6 to May 15 on the evening shift, from 7:00 p.m. to 3:30 a.m.

Two days after Morales began work he called the New York City Department of
Environmental Protection (DEP) to report a safety violation. Two days later DEP inspected the
premises. Morales stated that he heard Alvarez tell Noel that the DEP agent told him that one of
the employees called DEP. Noel wrote in the log book for May 11 that “workers called DEP
about work not proper inspection,” however Alvarez testified that she did not read that log book
entry and did not speak about that matter with Noel. He just told her that an inspection was
conducted and was okay. Alvarez testified that the DEP agent said, “someone is continuously
calling them.”

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Two days later, Morales called the Department of Labor (DOL) to report that not enough
micro-traps, which filter the asbestos from the air, were being used. Morales saw a DOL agent
at the jobsite that week. Neither DEP nor DOL issued any violations to the Respondent based
on those inspections.

One week before he was discharged, Morales called the New York City Department of
Sanitation to report that asbestos was in open containers in the street. He did not know if that
agency inspected the jobsite. About two days before he was fired, Morales called DEP. He
reported certain safety violations, however DEP did not inspect the worksite. Morales also called
the Occupational Safety and Health Administration (OSHA) during his final week at work and
reported certain safety violations.

Morales stated that a couple of days before his discharge, he was asked by Alvarez and
Moposita to enter a containment area and remove certain debris. At the time, Morales was not
wearing his protective suit and mask and asked permission to put them on. Alvarez said, “just
get in there.” Morales refused, Alvarez left, and Moposita told him to put his protective gear on.
Morales donned the equipment and performed the assignment.

Morales stated that on May 15, an OSHA agent visited the jobsite at 7:00 p.m. as the
employees arrived for work. Noel and Alvarez were present. Morales testified that he, the OSHA
agent, and other employees rode up the elevator together. When they arrived at the fourth floor,
Alvarez greeted them and Morales signed in and gave her his license. The OSHA agent told
Alvarez that he had the “right” to speak to the workers. Alvarez said that that was not a problem.
At that point, the OSHA agent spoke in English to a group of about 10 workers, telling them that
they should not worry, that he was from OSHA and was there to help them. Morales testified
that the workers did not understand English and he translated what the agent said into Spanish.
Alvarez, who also understands Spanish, stood next to Morales as he spoke to the workers in
Spanish.

Morales was fired by Alvarez twenty to thirty minutes after this incident, at about 7:30 or
8:00 p.m. He quoted Alvarez as saying: “You have to leave because I spoke with my boss who
told [me you] have to leave.” Morales asked why he was being dismissed, and Alvarez told him
that Braun said that there were too many employees on the job. Morales stated that no one else
was dismissed at that time.

The Respondent’s log book in evidence establishes that four employees were hired in
the period May 13, 14 and 15,11 and one other was hired on May 19.12

Alvarez testified that she had worked with Morales at a previous job. Although she
believed that he did not like taking orders from women and she had him fired from his last job
because “we could not work together” and does not follow orders, she agreed to project
manager Luther’s decision to hire him here. She further stated that Morales frequently offered to
help her and she readily agreed to his offer “I don’t want to refuse that. Sure you can help me.”
She assigned him to light work which would not “upset” him.

Alvarez stated that she laid off Morales after the OSHA agent arrived but before the
OSHA agent inspected the premises. She stated that Morales signed in that day upon his
arrival, but she immediately told him to leave. She told him not to sign the book because he
11 Jose Barahona, John Noboa, Manny Ortega and Daniel Sanchez.
12 Lorenzo Cruz.

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could no longer work there. When Morales protested she told him that he was just being laid off
for the present and that she would call him for the next job. She stated that Morales then signed
the book without her permission and left. Morales testified, however, that he was not fired upon
arriving for work. Rather, he was wearing his protective suit at the time he was dismissed. This
is consistent with his testimony that he was discharged 20 to 30 minutes after he arrived at
work. Accordingly, he would be expected to be working one-half hour after he signed in.

Alvarez told Morales that she would call him if she had another job for him. Morales
accused her of firing him. She denied it, telling him that she was just taking him off the job and
that she would call him for another job. At hearing, Alvarez denied calling him thereafter,
explaining that she asked Braun what she should do – whether she should assign him to PSPC.
Braun said, “no, standby,” and that Braun would advise her later.

Alvarez also testified that she laid Morales off because he needed “easy” jobs and there
were no such jobs remaining at the jobsite. She stated that he twice refused to perform
assignments. She noted that his partner German Tapia complained to her that Morales refused
to work. Alvarez told Tapia to “do whatever you have to make him. Let him go.” Tapia testified,
however, that Morales did not refuse to do any work. Rather, he stated that when he worked
with Morales, they worked slowly, and Morales told them that they had to work at a “normal
pace. Not too fast.”

The second instance involved her asking him to make piles of debris outside. Morales
refused to perform such work unless he wore his protective suit and respirator. Alvarez said that
he could wear the respirator but not the suit because the public would become frightened. When
Morales again refused, Alvarez permitted him to work in a different area. Alvarez said that she
told project manager Luther that Morales refused that assignment. Luther told her that if she
was not “comfortable” with that she should let him go until the next job. She responded that she
would see when she did not need him and would tell him to “stand by” until he could be
assigned to a different site where she was not the supervisor. In an August 5, 2002 letter to the
Inspector General of the U.S. DOL, Braun stated at on May 15 Alvarez “discharged an
employee, Mr. Fabio Morales, who had worked for us 7 days and had not been exhibiting the
experience or abilities Ms. Alvarez required of her crew.”

On May 15, following Morales’ discharge, the OSHA inspection took place. The OSHA
agent told Alvarez to correct various violations found. Alvarez denied that Morales was involved
in any way with the OSHA inspection, and specifically denied hearing him translate comments
from the OSHA agent to the employees. She also denied knowing that he was a union member.
During the inspection, an agent from DEP arrived. According to Alvarez, the DEP agent stated
that a certain document required to be at the jobsite was missing, and demanded that the job be
stopped. Accordingly, everyone left, including the OSHA agent.

Braun’s letter of August 5 to the DOL, however, states a different reason for the
shutdown of the site. Braun stated that the OSHA agents took a 90-minute tour of the work area
and then announced that they would perform a four-hour air-monitoring test. Manager Luther
believed that this test was duplicative since the Respondent was already running third party air
tests. Accordingly, the Respondent “suggested” that the agents obtain a warrant before
“disrupting our operations any further.” An agent responded that in cases where a warrant is
requested, the inspection is done in a “machine gun” manner. Luther believed that this remark
was a threat and asked the inspectors to leave, which they refused to do until the Respondent
released all its workers. Accordingly, the site was shut down at that time.

The OSHA inspectors issued certain violations, all of which were corrected during the

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inspection. They consisted of unguarded live electrical equipment; the use of flexible as
opposed to fixed wiring; electrical wiring was not secured high enough; lack of a ladder; and use
of a damaged ladder.

Alvarez testified that upon being ordered to leave the premises she was asked by
employee Jose Sanchez what had happened. Alvarez explained that DEP was shutting the job
site due to a missing document. Jose Sanchez said the actual reason the job was shut was that
Morales was a “spy” who spoke to them about a union and was “making a lot of problems,” and
that he observed Morales waiting nearby holding a cell phone and watching to see whether
everyone left the jobsite.

Jose Sanchez’ testimony differs however. He stated that he worked at the Monroe
College site on the day following the OSHA visit. He testified that Alvarez told him and about 10
to 15 other workers including his brother Daniel and Maria Ortega that Morales was fired
because he had called OSHA and because he was a member of the Union. Sanchez also
quoted Alvarez as telling the employees at that time that “people who are members of a union
cannot work here. They didn’t want anyone who was in the union.” Sanchez stated that no
employer representative told him that he would be discharged if he complained to OSHA.13

Employee Carlos Moposseta testified that he worked at the Monroe College jobsite on
May 15, although his name did not appear in the log book for that day. He saw an OSHA agent
that night, but did not see Morales translate the agent’s conversation to the workers. However,
he also stated that when the OSHA agent arrived the employees were already working.

Employee Segundo Gustavo Guato testified that he asked Morales to take demolition
debris to the truck. Morales refused because the metal was contaminated and he wanted to
wear his protective suit and mask. Guato refused permission and instead told Morales just to
work in the area. Guato reported Morales’ refusal to go outside without his protective gear to
Alvarez.

E. Other Witnesses for the Respondent

The Respondent presented several witnesses14 who testified consistently that they (a)
either wore union shirts at the Respondent’s worksites or saw employees wear them, and that
the Respondent did not require them to remove them or turn them inside out (b) did not hear
Alvarez or Moposita tell any employees that if Braun learned that they wore a union shirt or
were union members they would be discharged or could not work for the Respondent (c) did not
hear management representatives tell employees that they would be fired for distributing union
literature or engaging in union activities or say that it was futile to support the Union. Luis Orbe
testified that in about late September, 2002, he wore a hard hat bearing a logo from Local 79, a
demolition workers union which is not the same as Local 78, the union involved herein. Braun
took the hat and told Orbe that his wearing the hat is “no problem.”

13 I reject the Respondent’s argument that Sanchez was biased against it because he quit
his employment. Sanchez stated that he was left to work alone on jobs where he needed help.
His quitting was voluntary and I do not believe that he would have testified falsely because he
was unhappy at work.
14 Iveth Tapia, Armando Questa, Carlos Moposseta, Marco Martinez, Piedad Castillo,
German Tapia, Luis Orbe, Marlene Torres, Segundo Gustavo Guato, Segundo Moposita, Rosa
Alvarez.

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F. The Alleged Improper Conduct of the Union

The Respondent asserts that the activities of the Union and the employees are
unprotected because the Union did not seek to organize the employees or engage in lawful
activities, but rather the Union sought to destroy the Respondent.15

Supervisor Alvarez testified that in March, about one month prior to beginning work for
the Respondent, she went to the Local 66 office and met with Union representative Byron Silva.
She overheard him and another man speaking about Extreme and she asked Silva what the
Employer was up to. Silva replied that he wanted to “destroy the company” so that it would be
out of business, “like it did in the city,” preventing the company from working there. Alvarez
asked how that could be accomplished. Silva responded that he needed employees to work for
Extreme and asked her if she wanted to work there. Alvarez declined because she was already
working elsewhere. Nevertheless, she asked what she could expect from the Union. Silva
answered that if she was fired by Extreme the Union would get her a job at another location,
adding that she would have to help them “in many ways.” Alvarez asked for a description and
Silva said that if she decided to take a job with the Respondent he would let her know what to
do. Alvarez told Silva that she did not believe that it was easy to destroy a company like
Extreme. Silva replied, “if they didn’t before it’s because they don’t know the right procedure to
do that. But now, we are prepared. We will do anything to get the company down.” Alvarez then
left.

In addition to the testimony of Morales, above, that Silva told him to take a job at the
Respondent, help organize employees and report any safety violations to the various agencies,
there was other evidence of the Union’s efforts to organize the Respondent. Carlos Moposseta
testified that Silva asked him why he was working at the Respondent if he was a union member.
Silva asked him to help their organizing effort by reporting any improper work procedures to the
Union. Silva also asked for his last pay stub so that he could see his salary, and also asked if he
was given the proper equipment to work with. Silva offered to find Moposseta another job if he
was fired for helping the Union. Silva also met with Arruda and Ortega and spoke about the
Union’s organizing effort. The Union has given Arruda two paychecks and she was scheduled to
receive another at the time of the hearing. The Union did not promise to pay Leon, Ortega or
Vargas. Silva testified that Alvarez met with him at the Union office and offered to help in the
organizing effort. Silva told her that he would give her instructions in the future, and that
generally the Union paid the difference between the “salt’s” wages and the Union scale, but in
the meantime asked her to produce certain documented complaints she allegedly gave to the
DOL.

Silva testified that as part of the Union’s organizing campaign the Union sent a letter
dated May 1, 2002, to Gerry Wolkoff, the owner of the PSPC property. The letter stated that the
Union was monitoring contractors, including Extreme, to ensure compliance with health and
safety laws. It identified Extreme as a successor to AIA Environmental Corp which was
debarred by New York State. The letter also commented that Extreme is in “substantial debt to
many entities” and is at “high risk of collapse.” It noted that the Respondent has lawsuits
pending against it from building owners, suppliers and contractors, has outstanding judgments
against it of $150,000, and the federal and state governments have liens against it.

The letter warned Wolkoff of the danger that his company faces in using the
15 I denied the Union’s petition to revoke the Respondent’s subpoena calling for the
production of documents which would purportedly prove this defense.

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Respondent’s services. Specifically, it said that Extreme’s low credit rating would make it difficult
for it to acquire the supplies necessary to properly abate his property and he may have to redo
the work performed by Extreme. It further said that the more than $1 million total debt
outstanding for AIA and Extreme could cause federal investigations and repossession which
would “significantly delay the completion of your project.” The letter noted that Extreme has
been charged with violations of the Act and if its “actions continue, the labor disharmony will
cause delay to your project.” This was the only letter of this type sent by the Union.

Silva denied telling anyone that his intention was to “destroy” the Respondent. He
denied causing any of the Respondent’s equipment to cease to function and never told any
workers to engage in acts of sabotage or to work slower.

There appears to be nothing improper in the Union’s actions in this matter. The Supreme
Court, in Town & Country Electric, 516 U.S. 85 (1995), found that employees working for a
union in organizing employees of an employer are statutory employees and entitled to the
protections of the Act. By calling various health and safety agencies to report alleged improper
work practices by the Respondent, the Union and the employees engaged in protected conduct.
Systems with Reliability, Inc., 322 NLRB 757, 760 (1996); Beverly California Corp., 326 NLRB
153, 156 (1998). Although the Respondent believed that the Union sought to cause its ruin, as
noted in its August 5 letter, by filing complaints with OSHA, there is no evidence that the Union
sought to harm or destroy the Respondent. In addition, its letter to Wolkoff appears to be based
upon facts, none of which was challenged at the hearing.

IV. Analysis and Discussion

A. The Alleged Interference with Employees’ Section 7 Rights

I credit Siemak’s uncontradicted testimony that upon his discharge Braun pushed him,
prevented him from washing up at the fire hydrant, and tore up his asbestos workers license
which caused him to be unable to obtain asbestos handling work until he was able to obtain
another license. I find that these actions constitute unfair labor practices committed in the
course of Braun’s illegal discharge of Siemak.16 Three Sisters Sportswear Co., 312 NLRB 853,
854 (1993).

I credit the uncontradicted testimony of Arruda that in late March, 2002, admitted
supervisor Noel asked her if she was a member of the Union and whether she had a union
book. Noel did not testify. I further credit her testimony that on May 17, she was again asked by
Noel whether she was a Union member. He also told her that he intended to find out whether
she was a member, and warned that if Braun learned that fact she would be fired, as had been
the Polish workers. I credit Ortega’s testimony that Noel told the assembled workers on March
27 that if the Union came into the shop they would all go home and there would be no more
work, and that Braun said that they would all go home. Gissel Packing Co., 395 US 575, 711 fn.
31 (1969). The Respondent argues that I cannot credit Arruda’s testimony concerning the
statements by Noel and Braun at the March 27 meeting because she was the sole witness to
testify as to this event. Although apparently other witnesses could have been called to
corroborate Arruda’s testimony, that procedure was not necessary in that I find that Arruda was
16 The complaint alleges that the Respondent threatened employees with physical harm. I
find that Braun’s pushing of Siemak constituted a physical assault. Although a physical assault
was not alleged it is closely related to the allegation of a threat of physical harm and was fully
litigated at the hearing.

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a believable witness. The Respondent could have produced Noel or Braun to contradict her
testimony but chose not to.

Interrogation is not a per se violation of the Act. Rossmore House, 269 NLRB 1176
(1984). In determining whether an interrogation is unlawful, the Board examines whether, under
all the circumstances, the questioning reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. For example, the Board examines factors
such as whether the interrogated employee is an open and active union supporter, the
background of the interrogation, the nature of the information sought, the identity of the
questioner, and the place and method of interrogation.

Applying the above principles to the interrogation which occurred here, I find that Noel’s
questioning of Arruda reasonably tended to interfere with, coerce and restrain her in the
exercise of her Section 7 rights. At the time of the questioning, Arruda was not an open union
supporter when she was questioned by Noel an admitted supervisor. In March and on May 17,
Noel asked her if she was a union member. The May interrogation was accompanied by a
warning that Noel intended to make some calls and determine whether she was a union
member. The questioning was also coupled with a threat that if Braun learned of her union
membership she would be discharged. “This implied threat to link job [tenure] to an employee’s
union support would reasonably have caused [Arruda] to believe that Noel’s questions could
result in an adverse change in [Arruda’s] working conditions.” Demco New York Corp., 337
NLRB No. 135, slip op. at 2 (2002). I accordingly find that Noel’s interrogation of Arruda, his
threat to conduct an investigation of her union activities, and his threat that she would be
discharged if her union membership became known to Braun, violated Section 8(a)(1) of the
Act.

I also credit Arruda that Alvarez told her on April 19 that Sokol was fired because “he’s
with the Union,” that Braun did not permit Union organizers to “infiltrate” the work premises, and
that he preferred employees who were not union members. Those statements violate Section
8(a)(1) of the Act because they constitute an implied threat that employees engaged in union
activities would be fired or not hired. Watts Electric Corp., 323 NLRB 734, 735 (1997).

I further credit Arruda’s testimony that on May 24, she was asked by Noel why she and
Ortega were working to get into the Union, again threatening that if Braun learned that they
were working for the Union he would fire them as he had the Polish workers. Similarly, Alvarez
threatened that if Braun learned that union workers were “infiltrating” the company she would be
fired as had the Polish employees. At that time, Noel asked Arruda to promise that she would
not continue to organize for the Union. Ortega corroborated Arruda’s testimony that Noel asked
Arruda why she was doing these things, and also heard Noel ask Arruda to promise that she
would not continue to organize for the Union. I find that Noel’s statements to Arruda violated
Section 8(a)(1) of the Act as set forth above, and also his request for Arruda’s promise to stop
organizing constituted an unlawful conditioning of employees’ continued employment on their
cessation of union support. MZ Movers, Inc., 330 NLRB 309 (1999).

Alvarez essentially corroborated the testimony of Arruda by stating that after seeing
Arruda and Ortega distributing leaflets she told them that she did not think Braun would
appreciate that they were “spying”, which she defined as permitting the Union to create
problems in the shop. Alvarez clearly expressed her animus by telling the women that she
believed that the Union would create problems.

I credit the testimony of Vargas, which was corroborated by Leon, that in May, Moposita
asked Vargas if he was a union member, and warned that Vargas should be careful because if

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Braun learned of that fact he could discharge him. Moposita’s denial did not ring true, especially
since he conceded speaking about the union with the two men. His testimony that they
volunteered that they were union members cannot be credited particularly since his denial was
equivocal – he stated that he did not “exactly” ask Vargas if he was a Union member.

I find that these statements violate the Act. Although they were made by a low level
foreman, who I nevertheless find to be a supervisor, during a casual drive, Vargas did not bring
up the issue of unions. The question was initially asked by Moposita. Vargas was not an open
supporter of the Union, and the questioning combined with an implied threat of discharge clearly
would coerce Vargas in the exercise of his Section 7 rights.

I also credit Leon’s testimony, which was corroborated by Vargas, that in May, while
wearing a Union sweater he was told by Alvarez that if he was seen with that shirt he could be
fired. Alvarez thus warned him that he could be discharged if his union sympathies became
known. The right of an employee to wear union insignia at work is a form of expression
protected under Section 7 of the Act. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-803
(1945). In the absence of special circumstances permitting an employer to prohibit such
insignia, demanding that the employee remove it or warning him about wearing such insignia
violates the Act. Inland Counties Legal Services, 317 NLRB 941 (1995).

I credit Jose Sanchez’ testimony that on May 15, he was told by Alvarez that Morales
was fired because he had called OSHA and because he was a member of the Union. Sanchez
also quoted Alvarez as telling the employees at that time that “people who are members of a
union cannot work here. They didn’t want anyone who was in the union.” Such statements
violate the Act. Watts Electric, above.

I have essentially credited the employees’ testimony over that of the supervisors who
denied making the alleged comments, for the following reasons. First, Noel, an admitted
supervisor, did not testify and accordingly did not deny the statements attributed to him.
Similarly, Braun, who did testify but only as to issues of jurisdiction, did not testify about, and
thus did not deny the statements ascribed to him.

I have credited the testimony of those employees who have testified regarding Alvarez’
remarks. The statements made by Alvarez are more believable when considering Alvarez’
admitted union animus. Thus, Alvarez testified that she was aware that employees would be
acting as “salts”, being paid by the Union to work at the Respondent’s facility. She candidly
expressed her belief that such employees were “spying” and permitting the Union to “create
problems.” Accordingly, it is reasonable to infer that Alvarez would have made the statements
attributed to her – that Sokol and Morales were fired because they were Union members; that
Braun did not permit Union organizers to “infiltrate” the work premises; that he preferred
employees who were not union members; that if Braun learned that the union workers were
“infiltrating” they would be fired; and that if Braun saw Leon wear a union shirt he could be fired.
For the same reason I credit the mutually corroborative testimony of Vargas and Leon that
Moposita threatened that if Braun learned that Vargas was a union member he could be fired.

In addition, I believe that it is clear that the Respondent’s supervisors expressed the
convictions of Braun. His August 5 letter to the Inspector General of DOL set forth his belief that
OSHA was entertaining a “fraudulent complaint” or was engaged in a “harassment campaign
through a conspiracy with” the Union against the Respondent. Braun’s complaint referred to the
OSHA inspection of May 15 and the discharge of Morales which was apparently made the
subject of a whistleblower complaint. Braun complained that OSHA was spending much time,
money and resources “in an effort to aid and support a union … in its ultimate goal of driving us

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out of business.” As set forth above, OSHA’s May 15 inspection resulted in the issuance of
several violations, all of which were corrected during the inspection.

With reference to the above, it is apparent that the Respondent’s supervisors took their
“cue” from Braun, being adamantly opposed to the Union and its efforts to organize the
employees of the Respondent. The supervisors could be expected to know Braun’s feelings
concerning the Union and the Respondent’s position as to its unionization. It is significant that
many of the comments attributed to the supervisors made reference to Braun’s desire to avoid
unionization, threats to discharge employees who were members of the Union, and his
preference for employees having no union affiliation.

I have considered the testimony of employee witnesses for the Respondent to the effect
that employees wore union tee shirts without being reprimanded for doing so, and that they did
not hear Respondent’s supervisors threaten or warn employees about engaging in union
activities.

First, the testimony of the witnesses is unreliable because of the manner of their
preparation. The employee witnesses were asked questions and prepared for their testimony in
a room in which Braun was present. The Respondent failed to give them the assurances
required under Johnnie’s Poultry, 146 NLRB 770, 774-775 (1964). “The Board is very strict in
this requirement, for it is the only safeguard against coerced testimony.” Pratt Towers, Inc., 338
NLRB No. 8, slip op. at 37 (2002). The fact that the Respondent’s counsel gave such
assurances when they testified did not cure the fact that the “interrogations were held in a
coercive atmosphere, with … the person who hired them, present.” Pratt, above. Similarly,
Braun’s presence in the room during their questioning by counsel must have had the intended
impact of ensuring that they would testify consistently with the Respondent’s position.

In addition, none of those witnesses testified that a union shirt was worn before Sokol
and Siemak did so. Accordingly, there is no showing that such activity was permitted or went
unchallenged before the unlawful discharges of Sokol and Siemak. If, indeed, wearing of union
tee shirts was permitted after the fact that may have been simply a ruse to make it appear that
the Respondent harbored no animosity toward the Union. The union animus in this case makes
it obvious that discriminatory actions were taken against employees because of their union
activities.

Furthermore, the fact that none of the employees heard the Respondent’s supervisors
threaten or warn employees does not mean that such activities did not occur. As set forth
elsewhere, I have credited those witnesses who testified that they were threatened and warned
concerning their union activities.

B. The Alleged Discharges

1. Legal Principles

In order to establish a violation of Section 8(a)(1) and (3) of the Act, the General Counsel
must establish four elements by a preponderance of the evidence.

First, the General Counsel must show the existence of activity
protected by the Act. Second, the General Counsel must prove
that the respondent was aware that the employee had engaged in
such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action.

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Fourth, the General Counsel must establish a motivational link, or
nexus, between the employee’s protected activity and the adverse
employment action. American Gardens Management Co., 338
NLRB No. 76, slip op. at 2 (2002).

Once the General Counsel has made the showings required above, the burden shifts to
the employer to demonstrate that it would have discharged the employee even in the absence
of the protected conduct. Wright Line, 251 NLRB 1083 (1980).

a. Jerzy Sokol

It is undisputed that Sokol engaged in union activities on April 19 by wearing a shirt and
cap identifying him as a union organizer, and distributing flyers promoting the Union to his co-
workers. It is also undisputed that supervisor Alvarez saw this activity and received a flyer.

Alvarez testified that she was not aware that Sokol was an employee since that was her
first day on the job, but she nevertheless was quickly advised that Sokol was a worker when he
was discharged by Anderson. Alvarez was present at his discharge and admittedly heard
Anderson tell Sokol that he did not want anyone doing anything on his property without him
knowing about it. The real reason for the discharge was Sokol’s distribution of flyers as
evidenced by Anderson’s demand that Alvarez produce the person who was “handing out the
flyers,” and his advice to her that anyone who did this would be fired.

It is abundantly clear that the reason for Sokol’s discharge was his distribution of the
Union flyers. Anderson discharged him for that reason. This reason was confirmed by Alvarez
by her informing Arruda that Sokol was fired “because he’s with the union. It’s not permitted to
speak about the union.” Alvarez also told Arruda that Braun “did not permit the people from the
union to infiltrate the work premises.”

Sokol was discharged for distributing flyers concerning the Union to his co-workers. In
response to a subpoena demanding the production of all written company rules, the
Respondent’s counsel stated that there are no such documents. There is no evidence that the
Respondent maintained any oral rules prohibiting solicitation or distribution. Even assuming that
the Respondent had a rule prohibiting solicitation and distribution during lunchtime, such rule
would be overly broad and unlawful. Triangle Electric Co., 335 NLRB No. 82, slip op. at 15
(2001); Poly-America, Inc., 328 NLRB 667, 674 (1999).

As a general rule, an employer may not prohibit solicitation by
employees during their nonworking time, nor proscribe the
distribution of literature on nonworking time in nonworking areas.
Ford Motor Co., 315 NLRB 609, 610 (1994).

I have found, above, that Anderson is an agent of the Respondent. As an agent,
Anderson discharged Sokol in behalf of the Respondent.

Accordingly, I find that the General Counsel has established that the union activities of
Sokol was a motivating factor in the Respondent’s decision to discharge him. I cannot find that
the Respondent has met its burden of demonstrating that it would have discharged Sokol even
in the absence of the protected conduct. Wright Line, above. The Respondent’s defense to
Sokol’s discharge is that Anderson is not employed by the Respondent. I have rejected that
argument and have found that Anderson acted with apparent authority and his discharge of
Sokol was ratified and affirmed by the Respondent.

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b. Andrej Siemak

Siemak solicited employees and distributed Union flyers on April 19 with Sokol, as set
forth above. Alvarez witnessed those activities. The Respondent argues that Braun had no
knowledge of Siemak’s union activities, having come to the jobsite to check employee licenses,
and when he looked through the licenses found Siemak’s paper license and then asked Alvarez
whose it was. Alvarez denied knowing who Siemak was when Braun took his license, and by
implication denies that she advised Braun that Siemak had been engaging in union activities.

In Dr. Philip Megdal, D.D.S., Inc., 267 NLRB 82 (1983), the Board held that if a
supervisor’s testimony that he did not inform management of his knowledge of the union
activities of employees is credited, such knowledge may not be deemed to have been
conveyed, as a matter of law. The Board noted that a determination must be made as to
whether the supervisor’s denial was credible. In making such a determination, all the
circumstances of the case must be considered.

“The Board has not hesitated to infer an employer’s knowledge of employees’ protected
activities where the circumstances reasonably warrant such a finding.”; Matthews Industries,
312 NLRB 75, 76 (1993); Dr. Frederick Davidowitz, D.D.S., 277 NLRB 1046 (1985).

Knowledge need not be established directly, however, but may
rest on circumstantial evidence from which a reasonable inference
of knowledge may be drawn…. The Board has inferred knowledge
based on such circumstantial evidence as: (1) the timing of the
allegedly discriminatory action (2) the respondent’s general
knowledge of union activities (3) animus and (4) disparate
treatment. The Board additionally has relied on factors including
the delay between the conduct cited by the respondent as the
basis for the discipline and the actual discharge, and-in the case
of multiple discriminatees-that the discriminatees were
simultaneously discharged. Montgomery Ward & Co., 316 NLRB
1248, 1253 (1995).

The Board has also inferred knowledge where the reasons for the discipline are
baseless, unreasonable or contrived so as to raise a presumption of wrongful motive, or where
the “weakness of an employer’s reasons for adverse personnel action can be a factor raising a
suspicion of unlawful motivation.” Montgomery Ward, above at 1253.

Applying the above criteria, I find that the evidence warrants the inference that Braun
knew of the union activities of Siemak, and that it discharged him because of those activities in
violation of the Act. That Siemak was discharged for that reason is supported by the credited
testimony of Arruda that Alvarez and Noel warned her about her union activities, reminding her
about “what happened to the Polish workers.”

I cannot credit Alvarez’ testimony that she did not know Siemak when Braun asked for
all the licenses. She admittedly saw Siemak when he distributed flyers. When Braun came to
the jobsite after Sokol was discharged, Alvarez admittedly told him that Sokol was fired. Her
concession that she told him “what happened” implies that she told him that Sokol was fired for
engaging in union activities by distributing flyers for the Union. Alvarez, well aware of the
Respondent’s antipathy toward the Union, a fair inference may be drawn that she told Braun at
that time that Siemak also distributed flyers at the same time as Sokol, and pointed him out to

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Braun. Thereupon all that remained was for Braun to seize upon some reason to discharge
Siemak, which he found in the allegedly improper paper copy of his license.

The aggressiveness with which Braun discharged Siemak and the timing of the
discharge coming less than one hour after he engaged in conspicuous union activity, supports a
finding that the reason for the discharge was his activities in behalf of the Union. Braun, in a
rage, cursed at Siemak demanding that he leave, and pushed him. At the same time, Braun tore
up his asbestos handler’s license, sought to prevent him from taking his tools, confiscated his
hard hat and prevented him from using the fire hydrant to wash his hands. The alleged offense
of not having a proper license should not have warranted this extreme conduct.

There is no evidence that others who allegedly possessed paper licenses were treated
in this offensive manner. Rather, it appears that Braun was motivated in his discharge of
Siemak by some other reason. Braun’s animus toward the Union being well established, It is fair
to assume that the other reason was his activities in behalf of the Union which occurred shortly
before his discharge. I accordingly find that Siemak’s union activities were a factor in the
Respondent’s decision to discharge him.

I reject the Respondent’s defense that it fired Siemak because he lacked a proper
license. First, Braun did not mention to Siemak the reason why he was being fired. At hearing,
Alvarez stated that the Respondent has a rule requiring workers to have a duplicate copy of
their license with a DOL stamp affixed. This apparently is a rule unique to the Respondent, and
apparently applied to this jobsite only. Alvarez testified that there was no such rule at other job
sites in which Braun had an interest, and indeed she stated that other employers in the industry
permit their employees to work with a paper copy of a license with no DOL stamp, as Siemak
possessed. In addition, the DOL regulation permits employees to work with a copy of a license.

If it was Braun’s policy, that workers have such an original duplicate, Siemak did not
know of it, and it is apparent that during Siemak’s employ with the Respondent that policy was
not enforced. Each day of the week he was discharged his paper license was accepted by his
supervisor. Even assuming that the Respondent had such a policy, it was enforced disparately.
Thus, Alvarez stated that if an employee presented a copy of a license he would be sent home,
but permitted to return to work when he had the proper license. Here, Siemak was not given that
option. He was angrily discharged, leaving no doubt that he could not return to work. Moreover,
Siemak was not told why he was being fired and was therefore given no opportunity to return to
work with a proper license. Accordingly, I reject the Respondent’s argument that there was no
reason why Siemak could not return to work once he provided proper documentation.

There was no evidence that any employee other than Siemak was discharged for failure
to have a duplicate original license. It should be noted in this regard that the Respondent
refused to produce subpoenaed documents which would show the licenses of all its employees,
payroll documents and logbooks which would show when other employees’ licenses expired
and whether they continued to be in the Respondent’s employ. I therefore draw an adverse
inference that had such licenses been produced they would have been unfavorable to the
Respondent’s position that paper copies of licenses were not permitted. Teamsters Local 776
(Pennsy Supply), 313 NLRB 1148, 1154 (1994). I accordingly find that the Respondent has not
established its Wright Line defense.

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c. Betsey Arruda

As set forth above, Arruda had been the subject of Section 8(a)(1) violations by Noel
who (a) interrogated her about her Union membership (b) threatened her with an investigation
as to her union membership (c) threatened her with discharge and (d) asked her to promise to
abandon her union activities.

Thereafter, on May 24, she engaged in open union activities with co-worker Ortega by
wearing union shirts and caps and distributing flyers promoting the Union and asking her co-
workers to sign a petition. Alvarez, who was given a flyer, asked Arruda to “remember what
happened with the two Polish men”, and that if Braun learns what they were doing he would fire
them. That same day, Alvarez told Arruda and Ortega that Braun “knows everything” and that
she had told him that they were organizing for the Union.

Notwithstanding that Alvarez also told her that Braun said they could continue working,
that does not seem to have been the case. She was fired on her next workday. I cannot credit
Alvarez’ testimony that she did not tell Braun what she observed that day. The timing of the
discharge and the 8(a)(1) conduct I have found, coupled with the Respondent’s animus toward
the Union and the discredited reasons for the discharge, persuade me that Alvarez made Braun
aware of Arruda’s activities in behalf of the Union.

I accordingly find that the General Counsel has established that the union activities of
Arruda was a motivating factor in the Respondent’s decision to discharge her.

I credit Arruda’s testimony that she received permission from Alvarez to be absent on
May 28. In addition, Ortega’s credited testimony supports a finding that the notice of hearing
was delivered to Noel that morning. The original notice of hearing, as delivered by Ortega, was
in Arruda’s personnel file. Noel did not testify so we do not have his testimony that he did not
receive it. Arruda was nevertheless discharged for not appearing at work that day.

Although Arruda told Braun that she had received permission for the absence from
Alvarez, who stood nearby, Braun told her that it did not matter. Apparently, an excused
absence did matter in the case of employee Moncayo who also was absent on May 28, but then
was permitted to return to work with proof of the reason for his absence. It is significant that,
according to Alvarez’ testimony, when Braun asked on May 28 who was absent she mentioned
Arruda’s name and not Moncayo’s. Moreover, there was no evidence that Moncayo even had
permission to take the day off.

I cannot credit Alvarez’ testimony that, although she was aware that Arruda requested a
day off she did not ask for a specific date. The request was made on May 24 shortly before the
requested date of absence. It is obvious that Arruda would have mentioned the upcoming
hearing date of May 28.

I accordingly find that, especially given the disparate treatment accorded to Arruda when
compared to Moncayo, the Respondent has not met its Wright Line burden.

d. Maria Ortega

As set forth above, Ortega distributed flyers and obtained signatures on a petition with
Arruda on May 24, and was observed by Alvarez doing so. Three weeks later she was
discharged. Ortega was the subject of unlawful threats to discharge by Alvarez who said that if

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Braun learned of her union activity she would be discharged. I have found, above, that Arruda
was unlawfully discharged for this activity. Ortega was also prominently involved in distributing
flyers for the Union and soliciting for it at the same time as Arruda.

Based upon the above, I find that the General Counsel has established that the union
activities of Ortega was a motivating factor in the Respondent’s decision to discharge her.

The reason given for her lay off was that Alvarez deemed the upcoming work to be too
difficult for women to perform. Accordingly, Alvarez laid off three female workers. However, the
two other women were recalled after one or two days. In contrast, however, Alvarez admittedly
did not intend to recall Ortega until one or two weeks after her layoff. In fact, Alvarez admittedly
never contacted Ortega to return to work. No credible reason was given for the difference in
treatment between Ortega and the two other women.

The Respondent offered various versions of Ortega’s departure from the Respondent. Its
answer to the complaint admitted that it discharged her. At hearing, however, its position as set
forth by Alvarez was that she was laid off. Alvarez gave varied reasons for allegedly laying off
Ortega. First, as set forth above, she stated that the work was too arduous for female workers.
Then she testified that there was no work for her and she “needed to fix the staff.” Third, Alvarez
testified that decontamination work was being done and there were not enough decontamination
showers for everyone. “The Respondent’s varying rationales for its conduct lead to the inference
that the real reason for the layoff is not among those asserted by the Respondent.” Jacee
Electric, Inc., 335 NLRB No. 46, slip op. at 2 (2001). It is reasonable to infer that these shifting
defenses have been advanced to mask the Respondent’s unlawful conduct. Caguas Asphalt,
296 NLRB 785, 786 (1989).

Nevertheless, Alvarez did not even try to recall Ortega. She stated, without
corroboration, that other employees told her she was employed elsewhere in Pennsylvania. It is
possible that had Alvarez contacted her she may have been willing to return to work with the
Respondent.

There was testimony that Alvarez and Moposita allegedly heard Ortega telling other
workers to slow down. First, it is questionable whether this occurred since all participants in this
conversation were wearing hazardous materials suits with respirators and hoods covering their
faces. In addition, Alvarez was separated from the workers by an opaque tent. Even assuming
Alvarez heard Ortega’s alleged remark, that does not appear to be the basis for her discharge,
or layoff.

I accordingly find that the Respondent has not met its Wright Line burden.

e. Caryl Vargas and William Leon

I have found that Vargas was the subject of an illegal interrogation regarding his union
membership by Moposita, and a threat of discharge that if Braun learned about his union
affiliation he could be discharged. Leon wore a union shirt to work and, as set forth above, I
have found that Alvarez told him that he could be fired if he was seen wearing that shirt.

Moposita was aware of Vargas’ union membership and threatened him with discharge,
and Alvarez warned Leon about the danger of wearing a union shirt. A proper inference may be
made that Moposita advised Alvarez of Vargas’ union connection. Moposita was Alvarez’
foreman and was in close contact with her. He admittedly advised her of events occurring in the
worksite since Alvarez would not be in the work area at all times. Alvarez discharged the two

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men. Accordingly, I find that the General Counsel has established that the union activities of
Vargas and Leon was a motivating factor in the Respondent’s decision to discharge them.

Vargas was discharged one day after someone defecated in the workplace. Alvarez
testified that she was told that the wrongdoer was Vargas. The fact that he readily cleaned it up
without complaint upon Moposita’s asking him to do so leaves the strong implication that he was
the culprit. In addition, I credit the testimony of Moposita and Alvarez that they complained
to Vargas about his work performance. The General Counsel correctly argues that none of the
other workers who complained about Vargas’ work testified. However, I need not rely on the fact
that they did not testify to accept the testimony of Moposita and Alvarez that they received
complaints about his work.

As to their last day’s performance, although Moposita may have said that their work was
satisfactory, Alvarez, as Moposita’s supervisor, had the final say as to the performance on their
final assignment. Regarding the discrepancy in instructions given concerning the use of the wet
method, I find that the determination by Alvarez that their work was not satisfactory, is
conclusive. In addition, Luis Moran was also discharged at the same time as Vargas and Leon.
There is no evidence that Moran engaged in any union activities. It is unlikely that the
Respondent would have fired Moran just to conceal its true motives in the discharges of Vargas
and Leon.

As to Leon, he conceded that Alvarez complained to him about his work and admitted
that she told him that he must work faster, and if not he would have to go home. I have
considered the fact that Leon testified that Alvarez said the same thing to nearly all the
employees who worked with him at that time, but that does not lessen the warning, especially
since Vargas, who worked with him, was also discharged with Leon.

Alvarez’ testimony that she gave concessions to Leon in an attempt to work with him to
improve his skills is believable. She directed that he be placed with an experienced employee,
but nevertheless his work did not improve. On his last day he was discharged with Vargas
because, according to Alvarez, she had received too many complaints about his work.

I base my decision that the Respondent has met its Wright Line burden, in part, on the
facts that Vargas and Leon’s continued employment was based upon their performance on their
final job. Alvarez determined that the work was not satisfactory. They, along with Moran were
fired that day. I find too that they had been the admitted subjects of comments concerning their
poor work performance by Moposita and Alvarez prior to their discharge – Vargas, who
Moposita and Alvarez reasonably believed had defecated in the workplace, and Leon, who was
warned about his poor work performance. Under these circumstances, and the fact that the
Section 8(a)(1) violations committed against them occurred relatively early in their tenure with
the Respondent, convince me that the Respondent has met its Wright Line burden with respect
to Vargas and Leon.

I do not agree with the General Counsel’s argument that Alvarez viewed Vargas and
Leon as allies of Ortega since they worked together, and therefore discharged them because of
their perceived connection with Ortega’s pro-union stance. There is no evidence to support this
contention. They were co-workers with Ortega and there is no evidence that they engaged in
any union activities with Ortega other than their signing a petition which in any event was not
witnessed by Alvarez.

I accordingly find that the Respondent would have discharged Vargas and Leon even in
the absence of their union activities and I will recommend dismissal of those allegations of the

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complaint.

f. Favio Morales

Morales worked for the Respondent at its Monroe College site for only 1½ weeks.
During those weeks he was very active in calling various agencies to complain about working
conditions. He called DEP, DOL, the New York City Department of Sanitation and OSHA. It
came to the attention of the Respondent that an employee was calling these agencies. Thus,
Alvarez testified that she was told by the DEP agent that “someone is continuously calling
them.” Also, Noel wrote in the logbook that “workers called DEP.” Indeed, Alvarez also testified
that a DEP agent told her that the Union called the DEP.

I credit Morales’ testimony that immediately before his discharge Alvarez saw him
translating an OSHA agent’s introduction to the workers at the jobsite. Alvarez admitted firing
him after she saw the OSHA agent in the work area. Morales had already signed in to start work
and had been working for twenty to thirty minutes when Alvarez fired him, saying the “boss” told
her to dismiss him. The evidence is clear that Alvarez resented Morales’ assistance to the
OSHA agent and therefore must have believed that he was the employee who had been calling
the agencies. In addition, I credit the testimony of Jose Sanchez that Alvarez told him that
Morales was fired because he called OSHA and because he was a member of the Union. It is
clear that the Respondent believed that any assistance given by employees to OSHA was in aid
of the Union’s “fraudulent complaint” and “harassment campaign” designed to “driv[e] us out of
business” as set forth in its August 5 letter to the DOL Inspector General.

Based upon the above, I find that the General Counsel has established that the union
activities of Morales was a motivating factor in the Respondent’s decision to discharge him.

It appears that Alvarez gave Morales favored treatment at first based upon their previous
work together. Although she stated that they could not work together, she readily agreed to his
offer to help him at work and she gave him preferential “light work”. Nevertheless, she finally let
him go allegedly because no more “easy jobs” remained at the worksite. This reason does not
ring true, especially since she suggested to Braun that she reassign him to PSPC, but Braun
refused.

I also cannot credit Alvarez’ testimony that co-worker German Tapia complained that
Morales refused to work. Tapia testified, denying that Morales refused to work. Further,
although Morales stated that he was told by Alvarez that he was being laid off because there
were too many workers at the site, the Respondent’s records establish that four employees
were hired in that immediate period of time. The other testimony that Morales allegedly refused
work orders has not been established. First, Morales credibly testified that he wanted to wear
his asbestos suit while transporting metal outside the facility because he believed it contained
asbestos fibers. Moposita permitted him to do so, but Alvarez stated that she reassigned him to
work inside. Accordingly, the Respondent assigned him to work and he performed it. Thus it
cannot argue that he refused to work or did not perform the work assigned. I accordingly find
and conclude that the Respondent has not met its Wright Line burden.

Conclusions of Law

1. By physically assaulting an employee, preventing him from washing up at the fire
hydrant and tearing up his asbestos workers license, the Respondent has violated Section
8(a)(1) of the Act.

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2. By questioning employees concerning their union membership and activities; by
threatening employees with an investigation to discover whether they were members of the
Union; by threatening employees with discharge because of their membership in the Union or
their activities in support of the Union; and by telling employees that other employees were fired
for their union activities, the Respondent has violated Section 8(a)(1) of the Act.

3. By threatening to close the shop because of employees’ union activities; by
threatening that employees would not be hired or retained if they supported the Union or
engaged in union activities; and by conditioning employees’ continued employment on their
abandonment of their support for the Union and their cessation of activities on behalf of the
Union, the Respondent has violated Section 8(a)(1) of the Act.

4. By discharging Jerzy Sokol, Andrej Siemak, Betsey Arruda, Maria Ortega, and Favio
Morales because of their union activities, the Respondent has violated Section 8(a)(3) of the
Act.

5. The Respondent did not violate the Act by discharging or laying off Caryl Vargas and
William Leon.

Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17

ORDER
The Respondent, Extreme Building Services Corp., Great Neck, NY, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Physically assaulting employees; preventing employees from washing up at the fire
hydrant; destroying employees’ asbestos workers licenses; interrogating employees concerning
their union membership and activities; threatening employees with an investigation to discover
whether they were members of the Union; threatening employees with discharge because of
their membership in the Union or their activities in support of the Union; telling employees that
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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other employees were fired for their union activities; threatening employees with shop closure
because of their union activities; threatening that employees would not be hired or retained if
they supported the Union or engaged in union activities; and conditioning employees’
continued employment on their abandonment of their support for the Union and their cessation
of activities on behalf of the Union.

(b) Discharging or otherwise discriminating against any employee for supporting Local
78, Asbestos Lead and Hazardous Waste Union, Laborers International Union of North
America, AFL-CIO, or any other union.

(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Jerzy Sokol, Andrej Siemak, Betsey
Arruda, Maria Ortega, and Favio Morales full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.

(b) Make Jerzy Sokol, Andrej Siemak, Betsey Arruda, Maria Ortega, and Favio Morales
whole for any loss of earnings and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of the decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharges, and within 3 days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them in any way.

(d) Preserve and, within 14 days of a request, make available to the Board or its agents
for examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the amount of backpay due under the terms of
this Order.

(e) Within 14 days after service by the Region, post at its facility in Great Neck, NY
copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since March 1, 2002.

18 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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(f) 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.

Dated, Washington, D.C.

_____________________
Steven Davis
Administrative Law Judge

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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.

WE WILL NOT physically assault you; prevent you from washing up at a fire hydrant; destroy
your asbestos workers licenses; question you concerning your union membership and activities;
threaten you with an investigation to discover whether you are a member of the Union; threaten
you with discharge because of your membership in the Union or your activities in support of the
Union; tell you that other employees were fired for their union activities; threaten you with shop
closure because of your union activities; threaten that you or other employees would not be
hired or retained if you or they support the Union or engage in union activities; condition your
continued employment on your abandonment of your support for the Union and your cessation
of activities on behalf of the Union.

WE WILL NOT discharge or otherwise discriminate against you for supporting Local 78,
Asbestos Lead and Hazardous Waste Union, Laborers International Union of North America,
AFL-CIO, or any other union.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL within 14 days from the date of this Order, offer Jerzy Sokol, Andrej Siemak, Betsey
Arruda, Maria Ortega, and Favio Morales full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.

WE WILL make Jerzy Sokol, Andrej Siemak, Betsey Arruda, Maria Ortega, and Favio Morales
whole for any loss of earnings and other benefits suffered as a result of their discharges, less
any interim earnings, plus interest.

WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges, and within 3 days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them in any way.

EXTREME BUILDING SERVICES CORP.

Dated By
(Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date of posting and
must not be altered, defaced, or covered with any other material. Any questions concerning this
notice or compliance with its provisions may be directed to the Board's Office, One Metro Tech
Center, Jay St & Myrtle Ave, 10th Floor, Brooklyn, NY 11201–4201, Tel. 718–330–2862.

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