Jason Lopez' Planet Earth Landscape, Inc.

National Labor Relations Board - Board Decisions

May 22, 2012

358 N.L.R.B. 383 (N.L.R.B. 2012)

JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC.
358 NLRB No. 46
383
Jason Lopez’ Planet Earth Landscape, Inc. and La-
borers Pacific Southwest Regional Organizing
Coalition, Laborers’ International Union of
North America. Cases 31–CA–029817 and 31–
CA–030010
May 22, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND FLYNN
On December 5, 2011, Administrative Law Judge Ger-
ald M. Etchingham issued the attached decision. The
Acting General Counsel filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions,1 to
adopt the recommended Order as modified and set forth
in full below,2 and to modify the remedy.
AMENDED REMEDY
Having adopted the judge’s finding that the Respond-
ent violated Section 8(a)(5) and (1) by laying off em-
ployees Ruben Olguin Leyva (Olguin) and Omar Mota
Garcia (Mota) without giving the Union an opportunity
to bargain, we amend the remedy to require that the Re-
spondent give the Union notice and an opportunity to
bargain before implementing any layoffs. See Consoli-
dated Printers, Inc., 305 NLRB 1061, 1068 (1992).
In addition, the judge provided that backpay be com-
puted in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
Because the Respondent’s unfair labor practices resulted
in cessation of employment, those violations are appro-
priately remedied under the quarterly Woolworth back-
pay formula. See Raven Government Services, 336
NLRB 991, 992 (2001). Thus, backpay shall be comput-
ed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
We do not adopt the judge’s recommendation to re-
quire the Respondent to provide the Union a list of the

1 No exceptions were filed regarding the violations found. The Act-
ing General Counsel’s exceptions involve only the remedy, Order, and
notice.
2 We shall modify the judge’s recommended Order and notice to
conform to the violations found and the Board’s standard remedial
language.

names and addresses of its employees. This remedy is
typically ordered when an employer’s misconduct has
necessitated a second election or has prevented organiz-
ing for an initial election, so that the petitioner must have
an opportunity to contact employees away from the
workplace. See, e.g., Federated Logistics & Operations,
340 NLRB 255, 256–257 (2003), review denied 400 F.3d
920 (D.C. Cir. 2005); Excel Case Ready, 334 NLRB 4, 5
(2001). Here, the Union is the certified exclusive collec-
tive-bargaining representative of the unit employees. As
such, it may obtain this information from the Respond-
ent, upon request, in order to identify and contact the
employees it represents.
However, in agreement with the judge, we find that a
reading of the notice by Respondent’s president and
owner, Jason Lopez, or by a Board agent in Lopez’ pres-
ence, is appropriate here. The Respondent’s violations of
the Act are sufficiently serious and widespread that the
reading of the notice is necessary to enable employees to
exercise their Section 7 rights free of coercion. See HTH
Corp., 356 NLRB 1397, 1411 (2011); Carwash on Sun-
set, 355 NLRB 1259, 1263 (2010); Homer D. Bronson
Co., 349 NLRB 512, 515–516 (2007), enfd. mem. 273
Fed. Appx. 32 (2d Cir. 2008); Concrete Form Walls,
Inc., 346 NLRB 831, 838–840 (2006). As the judge
found, and we agree, the Respondent laid off Olguin be-
cause of his activities as the leader of the organizing
campaign and a witness for the Union in the underlying
representation proceeding, and laid off Mota because of
his active role in the organizing drive. In a unit of only
15 employees, the Respondent’s layoff of the 2 primary
union supporters and organizers on the heels of the elec-
tion would reasonably chill the exercise of Section 7
rights by the entire unit. In addition, the Respondent
committed numerous other serious violations, including
threatening to close the business and reopen it under a
different name if the Union prevailed in the election,
promising Olguin more lucrative jobs if he abandoned
his support for the Union, and providing money to Ol-
guin and his coworkers to discourage them from engag-
ing in organizational activities. Because Lopez personal-
ly committed these unfair labor practices and thus creat-
ed the atmosphere of intimidation, this remedy would
assure employees that he acknowledges their rights and
will not interfere with the exercise of those rights in the
future.
Contrary to our dissenting colleague, we find that the
Respondent’s violations had a widespread impact war-
ranting the notice reading remedy, even though most of
them were directed at employee Olguin. In Concrete
Form Walls, 346 NLRB at 838, the Board ordered spe-
cial remedies, including the reading of the notice, based
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
on the employer’s unlawful discharge of 4 employees
who voted in an election in a 25-person unit. In that
case, the Board found that the discharges would have a
“deep and lasting impact” on each unit employee. We
disagree with our colleague’s view that Concrete Form
Walls is distinguishable. After the swift postelection
discharges of Olguin and Mota, the unit employees here
would reasonably view themselves as highly vulnerable
to retaliation based on their selection of the Union, like
the employees in that case would based on participation
in a Board election. In both cases, the discharges con-
veyed a clear message to employees not to participate in
the selection of a union.3 Moreover, in Concrete Form
Walls, the Board found one additional 8(a)(1) violation,
a promise of a wage increase to employees who provided
documentation establishing their eligibility for employ-
ment under Federal immigration law, and an 8(a)(5) re-
fusal-to-bargain violation. Id. Here, in view of the Re-
spondent’s numerous independent 8(a)(1) violations, as
well as the layoffs in violation of Section 8(a)(3), (4),
and (5), a notice reading remedy is all the more warrant-
ed.4

3 Our colleague argues that Concrete Form Walls is distinguishable
from the instant case due to the employer's reliance on Federal immi-
gration law as the pretext for discharging the four employees there.
Neither the judge nor the Board in that case, however, suggested that
the employer’s reference to immigration law was critical in granting the
notice reading remedy. The Board there also granted a broad cease-
and-desist order and a Gissel bargaining order, which is reserved for
violations that seriously undermine the possibility of a fair second
election. With specific regard to the appropriateness of the Gissel
bargaining order, the Board considered the employer’s retaliation
against the four employees by investigating their immigration status
and discharging them because they voted in the election. In this case,
the Union was certified, and we need not consider this extraordinary
remedy.
4 Member Flynn would not order a notice reading remedy. The Re-
spondent’s violations, although serious, were not widespread. Indeed,
most of them were directed at a single employee, Olguin. In finding
that the Respondent’s violations warrant notice reading, Member
Flynn’s colleagues rely on their presumptive effect on the rest of the
unit. In most of the cases his colleagues cite, however, the Board or-
dered notice reading where employers’ widespread violations actually
affected numerous employees. See Carwash on Sunset, supra (ordering
notice reading where multiple agents of the respondent, on multiple
dates, subjected employees to coercive threats, promises, and interroga-
tions, and where the respondent unlawfully discharged or caused the
discharge of seven employees); HTH Corp., supra (ordering notice
reading where the respondents committed “numerous and wide-ranging
unfair labor practices,” including conducting an unlawful poll of em-
ployees’ union activities and sympathies, threatening an assembled
group of roughly 25 employees with job loss, unlawfully withdrawing
recognition from the union and making numerous unilateral changes,
and unlawfully discharging 7 employees); Homer D. Bronson, supra
(ordering notice reading where the respondent’s managers, in speeches
to the assembled work force, threatened that unionization would result
in plant closure). Member Flynn would adhere to the standard the cited
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Jason Lopez’ Planet Earth Landscape, Inc.,
Nipomo, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion membership, sympathies, and/or activities.
(b) Threatening to close its business because its em-
ployees engaged in activities on behalf of the Laborers
Pacific Southwest Regional Organizing Coalition, La-
borers’ International Union of North America (the Un-
ion), or other protected concerted activities.
(c) Promising employees benefits, including more lu-
crative prevailing wage job assignments, if they abandon
their support for the Union.
(d) Giving employees money in order to discourage
them from supporting the Union.
(e) Laying off its unit employees without prior notice
to the Union and without affording the Union an oppor-
tunity to bargain with respect to the layoffs and their ef-
fects.
(f) Laying off employees because they support the Un-
ion or engage in protected concerted activities.
(g) Laying off employees for testifying at a Board
hearing.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before laying off unit employees, notify and, on
request, bargain with the Union as the exclusive bargain-
ing representative of employees in the following bargain-
ing unit:
Included: All full-time and regular part-time landscap-
ing employees employed by the Employer [Respond-
ent] in all counties within the State of California.

precedent exemplifies and reserve the special remedy of notice reading
for cases where violations are both serious and widespread.
Concrete Form Walls, supra, in which the violations were less wide-
spread than in the just cited cases, is the exception that proves the rule.
There, the respondent justified its unlawful discharge of four Hispanic
employees as compelled by Federal immigration law, and 85 percent of
the remaining work force stood “in virtually the identical situation as
the four discharged employees.” 346 NLRB at 838–839. Under those
circumstances, the Board necessarily inferred a widespread impact
despite less than widespread violations. This case does not present
such uniquely compelling circumstances.
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 385
Excluded: Confidential employees, secretaries, and su-
pervisors and guards as defined by the Act, as amend-
ed.

(b) Within 14 days from the date of this Order, offer
employees Olguin and Mota full reinstatement to their
former jobs, or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(c) Make employees Olguin and Mota whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unilateral changes and unlawful dis-
crimination against them, in the manner set forth in the
remedy section of the judge’s decision as amended here-
in.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful actions taken
against Olguin and Mota and, within 3 days thereafter,
notify them in writing that this has been done and that
the unlawful layoffs will not be used against them in any
way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days from the date of this Order, post at
its Nipomo, California facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees by such means.6 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 em-
ployees and former employees employed by the Re-
spondent at any time since June 18, 2010.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
(h) Within 14 days of the date of this Order, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice marked
“Appendix” will be publicly read by the responsible cor-
porate executive, Jason Lopez, president, in both English
and Spanish, in the presence of a Board agent, or at Re-
spondent’s option, by a Board agent in Lopez’ presence.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities

WE WILL NOT coercively question you about your un-
ion membership, sympathies, and/or activities.
WE WILL NOT threaten to close our business because
you engage in activities on behalf of the Laborers Pacific
Southwest Regional Organizing Coalition, Laborers’
International Union of North America (the Union), or
other protected concerted activities.
WE WILL NOT promise you benefits, including more
lucrative prevailing-wage job assignments, if you aban-
don your support for the Union.
WE WILL NOT give you money in order to discourage
you from supporting the Union.

6 J. Picini Flooring, 356 NLRB 11 (2010). Member Flynn did not
participate in J. Picini Flooring but recognizes it as extant precedent,
which he applies for institutional reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
WE WILL NOT lay you off without first notifying the
Union and giving it an opportunity to bargain.
WE WILL NOT lay you off for supporting the Union or
engaging in protected concerted activities.
WE WILL NOT lay you off for testifying at a Board
hearing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in your
terms and conditions of employment by laying you off,
notify and, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following bargaining unit:
Included: All full-time and regular part-time landscap-
ing employees employed by the Employer [Respond-
ent] in all counties within the State of California.
Excluded: Confidential employees, secretaries, and su-
pervisors and guards as defined by the Act, as amend-
ed.

WE WILL, within 14 days from the date of the Board’s
Order, offer Ruben Olguin Leyva and Omar Mota Garcia
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Ruben Olguin Leyva and Omar Mota
Garcia whole for any loss of earnings and other benefits
suffered as a result of our unilateral changes and discrim-
ination against them, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Olguin and Mota, and WE WILL, within 3
days thereafter, inform them in writing that this has been
done and that the layoffs will not be used against them in
any way.
JASON LOPEZ’ PLANET EARTH LANDSCAPE, INC.

Juan Carlos Ochoa Diaz, Esq., for the General Counsel.
Erik Benham, for the Respondent.
Perfecto Ramirez, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This
case was tried in Santa Maria, California, on March 29, April
18–21, and September 6, 2011. (Tr.1 602–610, 630–659.) The

1 For ease of reference, testimonial evidence cited herein will be re-
ferred to as “Tr.” (Transcript) followed by the page number(s); docu-
mentary evidence is referred to either as “GC Exh.” for a General
Laborers Pacific Southwest Regional Organizing Coalition,
Laborers’ International Union of North America (the Charging
Party or the Union) filed the initial charge in Case 31–CA–
029817 on June 29, 2010,2 which was amended subsequently
on August 20, and a charge in Case 31–CA–030010 on October
29, which was later amended on December 30, and the Region-
al Director for Region 31 issued the consolidated complaint
(the complaint) on February 28, 2011. The complaint alleges
that the Respondent violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act) by laying off employees
Ruben Olguin Leyva (Olguin) and Omar Mota Garcia (Mota)
without notice to the Union and without affording the Union an
opportunity to bargain with the Respondent with respect to the
layoffs and their effects. The complaint also alleges that by
participating in the acts referenced above, the Respondent also
violated Section 8(a)(3) and (1) when it laid off employees
Olguin and Mota because of their Union or protected concerted
activities.
The complaint further alleges that Respondent violated Sec-
tion 8(a)(4) and (1) by laying off employee Olguin because he
testified at a representation hearing before the Board in Case
31–RC–008811. Finally, the complaint alleges that the Re-
spondent violated Section 8(a)(1) by interrogating employee
Olguin, promising him prevailing wage jobs, threatening to
close its business, and giving its prounion employees money.
As the trial went forward to conclusion, counsel for the Act-
ing General Counsel sought and I granted leave to further
amend the complaint to better conform to the evidence present-
ed. (Tr. 30–31, 33–36, 653–657; GC Exhs. 2, 21, and 23.) Ap-
plying the Board’s standard set forth in Folsom Ready Mix,
Inc., 338 NLRB 1172 fn. 1 (2003), I granted this request, as the
proposed amendments did not materially prejudice the Re-
spondent; the amendments involved new factual matters but
included much of the same evidence put forth at trial as was
required to litigate the matters arising from the original com-
plaint and as such I find that Respondent had adequate time to
properly defend the new factual allegations.3
Unless otherwise explained, findings of fact herein are based
on party admissions, stipulations, and uncontroverted testimony
regarding events occurring during the period of time relevant to
these proceedings. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the

Counsel exhibit, “R. Exh.” for a Respondent exhibit, followed by the
exhibit number(s); reference to the General Counsel’s posttrial brief
shall be “GC Br.” for the General Counsel’s brief, followed by the
applicable page numbers.
2 All dates are in 2010, unless otherwise indicated.
3 Initially, the Acting General Counsel sought and I granted Bannon
Mills, 146 NLRB 611, 614 fn. 4 633–634 (1964), sanctions for Re-
spondent’s continued failure to produce documents at trial in response
to a March 7, 2011 document subpoena. See Tr. 47, 179–180, 267; GC
Exh. 3. Later, the Acting General Counsel changed his position and
sought leave and I granted a trial continuance for Acting General Coun-
sel to evaluate whether to seek subpoena enforcement at the district
court. Tr. 355–360, 492–495, 508, 593–594, 624–625. Finally, the
Acting General Counsel determined that district court enforcement was
unnecessary and moved for a trial resumption which I granted without
timely opposition. GC Exh. 22.
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 387
brief filed by the Acting General Counsel,4 I find the following
events occurred in the circumstances described below during
the period relevant to these proceedings.
On the entire record,5 including my observation of the de-
meanor of the witnesses, and after considering the brief filed on
October 7, 2011, by the Acting General Counsel for the reasons
set forth below I find that Respondent violated the Act as al-
leged.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with offices and
activities in Nipomo, California, with projects throughout Santa
Barbara County, California. The Respondent is engaged in the
business of commercial and residential landscaping services for
governmental and nongovernmental customers who pay either a
prevailing wage or a non-prevailing wage depending on the
project. The parties stipulated and I find that during the 12-
month period ending June 10, the Respondent in conducting its
business operations, provided services valued at $14,880 for
Hensel-Phelps Construction Co. at its construction project at
the Vandenburg Air Force Base, a base of the United States Air
Force, located in the State of California. (Tr. 508, 510.)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As stated above, the Respondent, a California corporation, is
engaged in the business of landscape contracting providing
commercial and residential landscaping services in and around
northern Santa Barbara County, California, with its business
located in Nipomo, California. (Tr. 20, 58–60; GC Exhs. 4 and
11 at 2.) Respondent is owned by Jason Lopez (Owner Lopez)
who also acts as the Respondent’s president with the added
final authority to hire, fire, and layoff the Respondent’s em-
ployees. Id. Owner Lopez’ brother, Martin Lopez (MLopez),
also has the authority to direct the Respondent’s employees’
work activities and hire employees at the Respondent. (Tr. 82,
192–193, 522–523.) Owner Lopez admitted that MLopez is the
Respondent’s supervisor. (Tr. 523.) The Respondent is a mem-
ber of, or participates in, an association or other employer
group known as the Landscape & Irrigation Joint Journeymen
& Apprentice Training Committee of Southern California that
engages in collective bargaining. (GC Exhs. 4, 10, and 11 at 2.)
From June 10, 2009 to June 10, Respondent performed work
at Allan Hancock College, Vandenberg Air Force Base, and
Solvang Elementary School. (Tr. 181.) In conducting its busi-
ness, the Respondent derived at least $500,000 in gross revenue
from the performance of its landscaping services and purchased
materials or services directly from outside California valued at
$5000 during the 12-month period ending June 10. (GC Exhs. 4
and 11 at 2.) In addition, during this same time period, the

4 At the close of hearing, all parties were provided the opportunity to
submit a closing brief with the announced filing deadline of Friday,
October 7, 2011. Neither the Charging Party nor the Respondent timely
filed closing briefs. See Tr. 657–659.
5 All revisions to the transcript have been noted and corrected.
Respondent’s gross amount of its purchases from firms which,
in turn, purchased those goods directly from outside California
equaled or exceeded $50,000. Id.
Finally, the Respondent employed approximately 18–20 unit
individuals during the same relevant time period. (Tr. 121,
465–66; GC Exhs. 4, 11 at 2, and 18.) The following employ-
ees of the Respondent (the unit), constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:

Included: All full-time and regular part-time landscaping em-
ployees employed by the Employer [Respondent] in all coun-
ties within the State of California.

Excluded: Confidential employees, secretaries, and supervi-
sors and guards as defined by the Act, as amended.

(GC Exh. 17.)

The unit landscaping employees would perform basic garden
and landscaping work for the Respondent that included manual
and electric hammer digging, irrigation pipe installation, use of
tractors, grass cutting, plant maintenance and planting. (Tr.
193–194.)
B. The January Beginning of the Union Campaign
at Respondent
In or about January, the Respondent’s employees began to
seek representation from the Union in talks with its representa-
tive, Perfecto Ramirez, in part because the Respondent was
consistently late in paying employees. (Tr. 198–199, 380, 453.)
(See also GC Exh. 8.) In addition to later testifying on behalf of
the Union at the preelection hearing as stated below, employee
Olguin was the leader in the Union’s organizing campaign and
he regularly helped organize and attend union meetings. (Tr.
200–201, 454.) Employee Mota was also working directly with
the Union in the initial organizing drive and he would make
telephone calls to the Respondent’s employees to inform them
of upcoming meetings with union representatives. (Tr. 414,
454.) Specifically, employee Mota spoke to coworkers to con-
vince them to support the Union, and he also helped organize
and regularly attended Union meetings. (Tr. 381–382, 454.)
After several months of organizing and meetings, in May, the
Union filed a representation petition which became Region 31
Case 31–RC–8811. (Tr. 200–202; GC Exhs. 13, 14 and 15.) In
addition to organizing employees, the Union regularly deals
with employers about wages and rates of pay, vacation benefits,
among other things, and employees regularly participate in
union meetings and elect union leadership. (Tr. 149–152, 381,
404, 453–454; GC Exh. 10.)
C. The June Representation Hearing
The resulting representation hearing took place over several
days in June, including June 17, and employee Olguin testified
on behalf of the Union. (Tr. 202–203, 458.) Employee Olguin
was previously hired at the Respondent by Owner Lopez in
approximately mid-2007. (Tr. 192.) Owner Lopez attended the
hearing as well, including June 17, and saw employee Olguin
attend the hearing and testify on behalf of the Union. (Tr. 63–
64, 70, 202–203; GC Exh. 5 at 44, 246.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
On or about June 18, Owner Lopez spoke to employee Ol-
guin alone at the beginning of a workday while other employ-
ees were milling around the Respondent’s yard. (Tr. 64–65, 67,
70, and 203–204, 292.) Employee Olguin understands most
English statements but speaks only patchy English as well
while Owner Lopez speaks a little bit of Spanish and admits
that he roughly is able to communicate with employee Olguin.
(Tr. 81, 117, 204–205, 207–208.) Speaking in both English and
Spanish, Owner Lopez asked Olguin if he knew what the Union
was. (Tr. 204–205.) Olguin responded that he was aware of the
benefits a union can provide. (Tr. 205.) Owner Lopez then told
Olguin that Olguin did not know what the Union was and of-
fered him prevailing wage jobs,6 “[I]f [Olguin] want[s] more
money or if [he] want[s] prevailing work, just tell me.” (Tr.
205, 292, 296.) Owner Lopez further offered Olguin prevailing
wage work at a military base if he wanted them and Owner
Lopez admitted to Olguin that Owner Lopez did not want a
unionized work force at the Respondent. Id. Olguin responded
by telling Owner Lopez that he would think about it and the
conversation turned to work matters. (Tr. 206.)
Next, employee Olguin gave Owner Lopez a receipt to be re-
imbursed for $20 that Olguin had spent on gas for work. (Tr.
206.) Owner Lopez’ response to this was to give employee
Olguin $1007 and Owner Lopez told him to buy 6 quarts of oil
and to use the rest of the money to buy lunch for employee
Olguin and two other coworkers. (Tr. 206, 296, 316.) Prior to
this occasion, Owner Lopez had never given employee Olguin
extra money beyond expense reimbursements. (Tr. 207.) Owner
Lopez then told Olguin: “Think about it. If I want, I can close
down the company [the Respondent] and I [can] open it again
the day after tomorrow with a different name. What are the
people going to do?” (Tr. 207.)
On July 13, Owner Lopez, as the Respondent’s president,
signed a Project Agreement for “newly signed employers” with
the local Union which acknowledges the July 13 collective-
bargaining agreement between the Respondent and the Union.
(Tr. 152–153; GC Exhs. 9 and 10.) The project was limited to a
project between the Respondent and Contractor Hensel-Phelps
located at Vandenberg Air Force Base but during the time peri-
od that the Respondent worked the project, the project labor
agreement incorporates, and the parties agree to be bound by
the collective-bargaining agreement of the International Union.
(Tr. 153, 162–165, 177; GC Exhs. 9 and 10.)
Subsequently, the Regional Director issued a Decision and
Direction of Election on August 18. (GC Exh. 12.)

6 As credibly explained by employee Olguin, prevailing wage jobs
are government jobs that pay approximately $30 per hour more than
other projects at Respondent. Tr. 194, 205–206.
7 There is conflicting testimony as Owner Lopez testified that he
gave employee Olguin $200 while employee Olguin convincingly
testified with no pause that he received a $100 bill from Owner Lopez
on June 18. Tr. 70–71, 206, 573; GC Exh. 5 at 251. As referenced
below, employee Olguin was by far the more credible witness than
Owner Lopez and I credit employee Olguin’s testimony over Owner
Lopez.
D. The September Union Election
On the morning of September 17, the Board’s Region 31
conducted the election in its Case 31–RC–8811 at the Respond-
ent’s facility yard in Nipomo, California. (Tr. 83, 197, 213,
324–326, 425.) As the election was under way, while approxi-
mately 12 employees were gathered outside of the Respond-
ent’s area housing the ballots, employee Mota arrived and met
with his coworkers to encourage them to vote in the presence of
Owner Lopez who was seated in his truck approximately 15
feet away from the employees and observed Mota meet with his
coworkers. (Tr. 382–383, 511–512.) Mota handed out coffee
and donuts to his coworkers. (Tr. 382.) After talking to his
coworkers, employee Mota led them into the Respondent’s
adjacent construction yard area to vote while Owner Lopez
watched from a short distance. (Tr. 324–326, 385, 511–512.)
Employees Mota and Olguin voted on September 17 with the
other employees and Olguin also acted as the union election
observer by the polling place though he could not actually see
the area outside of the yard, including the parking lot or inside
the Respondent’s office during the election. (Tr. 210, 214, 272,
329, 384–385.)
Once the polls closed, the Board agent in charge of the elec-
tion conducted the vote count and announced, in the presence
of the Respondent’s representative, Erik Benham,8 that the
votes cast were 9–8 in favor of the Union, with 3 determinative
challenges pending. (Tr. 214, 345, 461; GC Exh. 16.)
E. The Discharges of Employees Mota and Olguin
Later in the afternoon on Friday, September 17, after the
election had been completed, the Respondent laid off and fired
employee Mota who had worked for the Respondent as a land-
scaper since 2008. (Tr. 213, 377, 387, 443; GC Exh. 19.) At
that time, the Respondent also laid off two other employees.
(Tr. 473.) Owner Lopez admits that he was aware of employee
Olguin’s union activity during the preceding months. (GC Exh.
7.) Although the Respondent has asserted that the reason for the

8 As stated above, Benham also participated at trial as the Respond-
ent’s nonattorney representative on behalf of the Respondent and its
president, Owner Lopez, though he did not comply with my March 31,
2011 order that he file a written Notice of Representation with the
Division of Judges “as soon as possible.” Tr. 8, 77–78, 171. Moreover,
I find that the Respondent was not proceeding at trial in pro se as the
Respondent selected Benham as its nonattorney representative and had
ample time and opportunity since the original June charge to secure a
different representative. Tr. 171, 319–320. The NLRB has jurisdiction
to proceed against the corporate Respondent here, though it was not
represented at the administrative hearing by an attorney but by its
nonattorney representatives. See Secs. 102.21, 102.38, and 102.177 of
the Board’s Rules and Regulations (“. . .attorney or nonattorney repre-
sentative of record . . . .” and any party can appear at hearing “in per-
son, by counsel, or by other representative, . . . .”). See also Caressa
Camille, Inc. v. Alcoholic Beverage Control Appeals Board, 99
Cal.App.4th 1094, 1103 (2002) (California administrative agency had
jurisdiction over corporate licensee despite licensee not being repre-
sented by an attorney at administrative hearing). Here where more than
a year has passed from the filing of the initial charge, I find that the
Respondent had ample time and ability to retain legal counsel by the
close of trial. See Patrician Assisted Living Facility, 339 NLRB 1153
fn. 3 (2003).
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 389
layoff was lack of work, the termination letters dated Septem-
ber 17 also states this, Owner Lopez also admits to employee
Mota that Owner Lopez’ belief that employee Mota, another
employee named Omar, and the second Omar’s brother–the
three of them–had filed a “complaint” with the Union was one
reason for his layoff. (Tr. 86, 387–388, 428–430, 576, 579–581;
GC Exhs. 7 and 19.) In addition, Mota credibly explained that
the house project in Nipomo that he was working when he was
laid off had another 2 months to go to complete the installation
of sidewalks and irrigation pipes. (Tr. 385–386.) Mota also
described a number of the Respondent’s ongoing projects at the
time of his layoff including projects at Vandenberg Air Force
Base, one on Broadway in Santa Maria, one in Santa Barbara,
one at a school in Solvang, and one on Route 46. (Tr. 388–
389.)
On Monday, September 20, the next business day after the
election, Owner Lopez laid off employee Olguin allegedly be-
cause there was no work. (Tr. 86, 214–215, 330, 576, 579–581;
GC Exhs. 7 and 20.) At trial, the Respondent argued that em-
ployee Olguin was laid off because he did not have a valid
driver’s license despite being informed by employee Olguin in
December 2009 that he did not have a valid driver’s license.
(Tr. 298–301, 361–362, 522.) No mention of any failure on
Olguin’s part to have a valid driver’s license was included in
his lay off letter. (GC Exh. 20.)
Up until that time, employee Olguin had worked for the Re-
spondent more than 2 years. (Tr. 118, 192.) Since February 1
and continuing until his layoff on September 20, employee
Olguin worked at the Respondent with the gardeners or mainte-
nance crew. (Tr. 216, 242.) Before that time, Olguin worked
full time for the Respondent on prevailing wage jobs. (Tr. 245.)
Employee Olguin estimated that he regularly worked 50 to 52
hours per week for the Respondent and averaged $700 per
week in earnings for most regular work and almost $2000 per
week when he worked on a prevailing wage government jobs
for the Respondent. (Tr. 194, 205–206, 216.) Mota explained
that he worked full time averaging between 8–10 hours per day
depending on the type of work and he was similarly paid $8 per
hour for “regular” landscaping work and up to $30 per hour for
“government jobs” (Tr. 378, 420.)
Owner Lopez admitted that he did not notify the Union prior
to laying off employees Mota and Olguin. (Tr. 87, 152, 463–
464.) Owner Lopez further admits that there have been times
when he would rehire former employees after they had been
fired or laid off. (Tr. 87.)
Within a month of his layoff, employee Mota went to speak
with Owner Lopez at the Respondent’s facility to ask if he
could return to work. (Tr. 390–391.) When Mota asked Owner
Lopez if he was going to give Mota work, Owner Lopez began
to laugh and told employee Mota that there was no way he
would do so because employees Mota and Olguin had filed a
“complaint.” (Tr. 391.) Employee Olguin also spoke to Owner
Lopez after his layoff. (Tr. 218.) Owner Lopez told employee
Olguin at that time approximately 9 a.m. at a jobsite that every-
one from the Union were good-for-nothing assholes who simp-
ly wanted employee Olguin’s money. (Tr. 219–220.)
At the time of the layoffs, the amount of work at the Re-
spondent had not changed. At that time, the Respondent was
working on numerous projects, and employee Mota was work-
ing 8-hour days, just as he had throughout his employment with
the Respondent. (Tr. 378, 388–389.) Similarly, at the time of
his layoff, employee Olguin was working in the gardening
maintenance crew and the amount of work on that crew had not
changed; in fact, employee Olguin was working the same num-
ber of hours he had always worked for the Respondent. (Tr.
194, 216.) Employee Olguin had previously stopped driving the
Respondent’s truck as its regular driver Mario who left in pro-
test of nonpayment of wages in May had returned on August 26
or 27. (Tr. 296–298, 346–347.)
Moreover, by October, only a month after laying off em-
ployees Mota and Olguin, the Respondent hired three new em-
ployees who were identified by employee Mota as wearing the
Respondent’s yellow company shirts and even Owner Lopez
acknowledged that one new employee was working for the
Respondent after the layoffs.9 (Tr. 90, 217–218, 389–391, 464–
466, 470, and 587; GC Exhs. 8 and 18.) By December, at least
two of the Respondent’s employees, Venegas and Estrada,
signed a December 10 letter to the Respondent complaining of
nonpayment of wages. (GC Exh. 8.) These two respondent
employees were not listed on the Excelsior list submitted in
August listing the Respondent active employees eligible to vote
in the September election. (Tr. 465; GC Exhs 8 and 18.) Owner
Lopez testified that his brother, MLopez, hired these two em-
ployees at the Respondent. (Tr. 549.) At no time before trial
had the Respondent called employee Olguin back to work. (Tr.
217.)
After the election, the challenged ballots were resolved and
on November 10, the Regional Director for Region 31 certified
the International Union as the exclusive bargaining representa-
tion of the unit. (Tr. 345, 462–463; GC Exh. 17.) No timely
objections to the certification were filed by the Respondents. Id.
III. DISCUSSION AND ANALYSIS
A. Credibility
The key aspects of my factual findings above with respect to
the Respondent’s engaging in commerce through its generation
of revenues and expenses, Owner Lopez’ and MLopez’ true
supervisory roles with the Respondent, the interrogation, threats
and promises of prevailing wage jobs and money, and the un-
derlying reasons which led to the discharge of employees Mota
and Olguin incorporate the credibility determinations I have
made after carefully considering the record in its entirety. The
testimony concerning the material events in 2010 contain sharp
conflicts. Evidence contradicting the findings, particularly tes-
timony from Owner Lopez, has been considered and rejected
for the reasons that follow.
My credibility resolutions have been formed by my consid-
eration of a witness’ opportunity to be familiar with the sub-
jects covered by the testimony given; established or admitted

9 Owner Lopez denied hiring any new workers after the election and
the firing of employees Olguin and Mota. Tr. 88. I reject this testimony
as not credible and inconsistent with the letter from employees showing
three new employees since September 20 who signed a December 10
letter stating that unless they get paid in full, they will not come back to
work with the Respondent. Tr. 89; GC Exh. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
facts; the impact of bias on the witness’ testimony; the quality
of the witness’ recollection; testimonial consistency; the pres-
ence or absence of corroboration; the strength of rebuttal evi-
dence, if any; the weight of the evidence; and witness demeanor
while testifying. More detailed discussions of specific credibil-
ity resolutions appear herein in those situations that I perceived
to be of particular significance.
Employee Olguin’s demeanor at trial was impressive. He had
worked with the Respondent’s president, Owner Lopez, for
over almost 3 years before being laid off on September 20.
Olguin’s chronology of events and detailed recollection were
quite credible especially when verified numerous times by Mo-
ta, Ramirez, and even infrequently by Owner Lopez. He was
especially believable when he discussed his conversation with
Owner Lopez on June 18 and recalled both Owner Lopez’
statements and his own responses.
Employees Mota and Olguin were also credible witnesses as
they were earnest, genuine, and their testimonies were reasona-
ble and consistent with the record. In addition, they appeared
serious and respectful of the hearing process. In contrast, Own-
er Lopez either seemed unable to appreciate the seriousness of
the hearing process, or did not care to directly answer questions
posed to him and was very evasive and unbelievable except
when consistent with Olguin’s or Mota’s testimony. Employee
Olguin was especially credible as he explained how he knew
that the Respondent had hired new employees other than him
after his layoff because over the years that he worked at the
Respondent, he got to know all the workers and he recognized
the new employees hired by the Respondent since his layoff.
(Tr. 218.)
Ramirez from the Union provided a convincing explanation
that at least two employees working for the Respondent in De-
cember, Jose Luis Venegas Jr. and Donato Estrada were not
listed on the Excelsior list of the Respondent’s employees eli-
gible to vote at the September election. (Tr. 464–466, 587; GC
Exhs. 8 and 18.) I reject Owner Lopez’ contrary testimony (Tr.
88) though he did admit that his brother MLopez hired Venegas
and Estrada at the Respondent. (Tr. 548–550, 587.) Further-
more, the Respondent’s other employees were not under the
control of the Acting General Counsel and the failure to call
any such witnesses should not affect the credibility of employ-
ees Olguin’s and Mota’s testimony.
As stated above, I found key elements of the testimony given
by the Respondent’s principal witness, Owner Lopez, that con-
flict with the testimony of employee witnesses unworthy of
belief especially when the testimony contradicts his earlier
testimony from the representation hearing or other documentary
evidence. In virtually all of the significant instances, reliable
documentary evidence failed to support accounts provided by
the Respondent’s key witness.
Owner Lopez’ testimony was also marked by an effort to re-
cant prior signed admissions that the Respondent met the
Board’s commerce requirements in the form of signed com-
merce questionnaires tendered to the Region on or about June
10 (GC Exh. 4). His behavior at the hearing was marked by a
continued refusal to produce subpoenaed documents (with the
exception of one single project contract), and a refusal to tender
other subpoenaed materials although he was directed to do so. I
did not find Owner Lopez credible given his demeanor at trial
and his disrespect for the trial process. Therefore, I reject his
testimony except for the noted admissions referenced above.
Similarly, his testimony was marked by what could only be an
intentional failure to recall answers to questions, and a com-
plete refusal to answer other questions although he was directed
to do so. Owner Lopez denied the Respondent engaged in
commerce within the meaning of the Act. Based upon the sub-
mitted evidence, noting Owner Lopez’ refusal to answer certain
questions, and to supply certain subpoenaed records, I have
concluded the Respondent in fact is an employer in commerce
meeting the Board’s requirements as set forth above. My con-
clusion that the Respondent is an employer in commerce will
be further discussed in the analysis section of this decision.
Owner Lopez was also not credible that he spoke to employ-
ee Olguin about having a valid driver’s license on September
15 and that this allegedly was the first time he ever heard that
employee Olguin did not have a valid driver’s license. (Tr.
520–522.) Also it is not credible that Owner Lopez laid off
Olguin for not having a valid driver’s license as the September
19 termination letter makes no legitimate reference to Olguin
not having a driver’s license. (Tr. 522, 569; GC Exh. 20.) It is
more credible that this shifted theory for laying off employee
Olguin was first developed at trial by the Respondent’s repre-
sentative, Benham, and not considered before April 2011. Fur-
thermore, at the time of his layoff, Olguin was no longer re-
sponsible for driving the Respondent’s truck. (Tr. 575, 588.) I
also reject Owner Lopez’ self-serving testimony that his broth-
er, MLopez, made a list of four or five of the Respondent’s
employees to fire during the week of September 17 or that the
Respondent had too many employees to begin with since the
list was not produced and MLopez did not testify. (Tr. 522–
523, 526.)
B. At All Material Times, the Respondent was an
Employer Engaged in Commerce within the Meaning of
Section 2(2), (6), and (7) of the Act
The Acting General Counsel alleges in paragraphs 2 and 3 of
the complaint that the Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The Respondent, however, refused to admit
that at all material times, it was an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. (Tr. 19.)
As stated above, though, as admitted in the Questionnaire on
Commerce Information admittedly signed by Owner Lopez on
June 10, I find that in conducting its business in Nipomo, Cali-
fornia, for residential and commercial customers as a California
corporation, the Respondent derived at least $500,000 in gross
revenue from the performance of its retail and wholesale land-
scaping services and purchased materials or services directly
from outside California valued at $5000 during the 12-month
period ending June 10. (Tr. 62; GC Exhs. 4 and 11 at 2.) The
Respondent did not deny signing the commerce information
questionnaire on June 10 nor was any credible evidence put
forth to dispute the accuracy of the information provided within
the questionnaire. I find that the Acting General Counsel has
put forth evidence sufficient to show that the Respondent’s
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 391
gross revenues satisfy the Board’s retail standard. See Carolina
Supplies & Cement Co., 122 NLRB 88 (1958).
In addition, during this same time period, the Respondent’s
gross amount of its purchases from firms which, in turn, pur-
chased those goods directly from outside California equaled or
exceeded $50,000. Id. Alternatively, the Respondent’s purchase
of materials or services directly from outside California valued
at $5000 during the same 12-month period, also admitted in the
same questionnaire, is sufficient to establish statutory jurisdic-
tion. (GC Exhs. 4 and 11 at 2.) See also Pioneer Concrete Co.,
241 NLRB 264, 265 (1979), enfd. 637 F.2d 698 (9th Cir. 1981).
Finally, the Respondent employed approximately 18 individu-
als during the same relevant time period. (Tr. 465–466; GC
Exhs. 4, 11 at 2, and 18.)
Thus, I agree with the Acting General Counsel’s argument.
(GC Br. at 8–9.) Consequently, I find that at all material times,
the Respondent was an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act as alleged
in paragraphs 2 and 3 of the complaint.
C. At All Material Times, the Union was a Labor Organization
within the Meaning of Section 2(5) of the Act
The Acting General Counsel alleges in paragraph 4 of the
complaint that at all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the Act. The
Respondent, once again, refused to admit that the Union is a
labor organization within the meaning of Section 2(5) of the
Act. (Tr. 19.) However, based on the undisputed testimony of
Angelo Arevalos, a 28-year union representative and the local
Union’s vice president and business agent, I find that the Union
is a labor organization within the meaning of Section 2(5) of
the Act which regularly deals with employers about wages and
rates of pay, and whose employees regularly participate in un-
ion meetings and elect union leadership. (Tr. 148–178, 452–
490; GC Exh. 10.) Moreover, on November 10, the Union was
certified by the Board in a representation proceeding involving
this Respondent’s business. (Tr. 345, 462–463; GC Exh. 17.)
As a result, I further find that at all material times, the Union
was a labor organization within the meaning of Section 2(5) of
the Act as alleged in paragraph 4 of the complaint.10
D. Supervisory Status of Owner Lopez and Supervisor/Agent
Status for MLopez
Despite its admission that Owner Lopez, the Respondent’s
owner and president, has final authority to hire, fire, and lay off
the Respondent’s employees, the Respondent challenges the
supervisor and agent status for Owner Lopez. (See Tr. 19, 60.)
Similarly, despite the Respondent’s admission through its pres-

10 The Regional Director also found that the Union was a labor or-
ganization in his decision in the R-case. GC Exh. 12 at 3–6. The Re-
spondent did not file any timely exceptions to the Regional Director’s
factual findings in his decision. While I do not rely on the Regional
Director’s decision, I take administrative notice of it and I note that the
Respondent did not offer any new reliable evidence proving that the
Regional Director’s factual findings were incorrect. Tr. 188. No con-
vincing arguments or supplemental reliable evidence have been prof-
fered by the Respondent in this case to dispute the Union’s labor organ-
ization status.
ident, Owner Lopez, that his brother, MLopez, is a supervisor
who is in charge and hires employees, the Respondent also
refused to stipulate to the supervisor and agent status for
MLopez. (See Tr. 19, 60, 523.)
Under Section 2(11) of the Act a supervisor is any person:

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 recom-
mend such action, if in connection with the foregoing the ex-
ercise of such authority is not a merely routine or clerical na-
ture, but requires the use of independent judgment.

29 U.S.C. § 152(11).
Each of these criteria need not be satisfied for an employee
to be classified as supervisor under Section 2(11). National
Welders Supply Co., 129 NLRB 514 (1960). Moreover, the
Supreme Court has suggested that an employee may be classi-
fied as a supervisor if he meets any 1 of the 12 criteria. NLRB
v. Yeshiva University, 444 U.S. 672 (1980). However, to be
classified as a supervisor the employee must (1) have authority,
(2) to use independent judgment, (3) in performing such super-
visory functions, and (4) in the interest of management. NLRB
v. Healthcare & Retirement Corp of America, 511 U.S. 571
(1994). However, making routine assignments without the use
of independent judgment has been found to be insufficient to
meet the requirements of a statutory supervisor. Stanford Hotel,
344 NLRB 558 (2005).
Owner Lopez fits several of the Act’s enumerated criteria in-
cluding having final authority for hiring, laying off, and dis-
charging employees. (See Tr. 19, 60.) The Respondent’s writ-
ten work contracts, termination letters, and other key events
such as the Respondent’s representative at the representation
hearing all show that Owner Lopez, as the Respondent’s owner
and president, had full authority to act for the Respondent in all
employee and labor matters. (See GC Exhs. 4, 5, 7–9, 11, 19–
20.) Employees were directed to contact Owner Lopez or
MLopez for any problems or complaints they had related to
work.
Also, Owner Lopez as evidenced by his June 18 conversa-
tion with employee Olguin concerning his offer to provide Ol-
guin and other employees with higher paying prevailing wage
jobs shows that Owner Lopez had the ability to directly impact
the earning capacity of the landscaper employees by assigning
them more or less lucrative jobs.
Although the Respondent claims that Owner Lopez does not
have any supervisory authority over its employees, it is clear
that Owner Lopez is responsible for assigning work and hiring,
laying off, and firing employees. It is telling that at the trial in
this matter, Owner Lopez suddenly began saying that his broth-
er MLopez was the employees’ supervisor and hired employees
to create the appearance that he had no authority over the land-
scape employees though Owner Lopez refused to stipulate to
this fact.
In addition to the primary supervisory status criteria, Owner
Lopez also meets many of the secondary criteria the Board has
developed including employees’ perception that Owner Lopez
is a supervisor as well as his direct involvement in employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
Olguin’s and employee Mota’s lay offs. See Ken-Crest Ser-
vices, 335 NLRB 777, 779 (2001). In addition, Owner Lopez is
inextricably linked with management and all of his actions are
in the interest of management. Owner Lopez is the namesake,
owner, founder, and president of the business.
Despite the Respondent’s claims that Owner Lopez did not
have any authority over the employees, it is clear that he did
have actual control and authority over the landscape employees
and that he directly supervised them. The record is rife with
examples of how Owner Lopez exerted that control and as
such, I find that Owner Lopez is a supervisor within the mean-
ing of Section 2(11) because he is admittedly vested with final
authority to hire, lay off, and fire the Respondent’s employees,
assign and direct their work, and discipline them.
I further find that Owner Lopez’ brother, MLopez, is also a
supervisor at the Respondent under Section 2(11) of the Act,
because admittedly by Owner Lopez, MLopez is a supervisor
who is also in charge and hires employees as their supervisor.
(Tr. 523.) Consequently, I find that Owner Lopez and MLopez
are supervisors within the meaning of Section 2(11) of the Act.
E. Respondent Violated Section 8(a)(5) and (1) of the Act by
Laying Off Employees Olguin and Mota Without Prior Notice
to the Union and Without Affording the Union an Opportunity
to Bargain with the Respondent
The Acting General Counsel alleges in paragraphs 6 and 10
of the complaint that, on September 17 later in the day after the
representation election for employee Mota, and on September
20 for employee Olguin, the Respondent laid them off without
prior notice to the Union and without affording the Union an
opportunity to bargain with respect to this conduct and the ef-
fects of this conduct in violation of Section 8(a)(5) and (1) of
the Act. As I found above, Owner Lopez admitted and the un-
ion representatives confirmed that the Respondent did not noti-
fy the Union prior to laying off employees Mota and Olguin.
(Tr. 87, 152, 463–464.) Therefore, I further find that Owner
Lopez did not bargain with the Union prior to laying off em-
ployees Mota and Olguin.
The complaint alleges, and the evidence submitted supports,
that on September 17, a representation election was conducted
among employees in the unit and on November 10, the Union
was certified as the exclusive collective-bargaining representa-
tive of the unit. (Tr. 83, 197, 213–214, 324–326, 345, 425,
461–463; GC Exhs. 16 and 17.) Thus, the layoffs on employees
Mota and Olguin took place between the election and the certi-
fication of the Union. The Board has held in Consolidated
Printers, 305 NLRB 1061, 1067 (1992), that no unilateral
changes may be made by an employer during the period of time
between the results of the election and eventual certification.
Accord, Ebenezer Rail Car Services, 333 NLRB 167 (2001).
Here, there is no question that a change in conditions of em-
ployment took place on September 17 after the representation
election and again on September 20 for employees Mota and
Olguin, when they were unilaterally laid off.
I also rely on the following well-established principles. Sec-
tion 8(a)(5) and (d) of the Act obligate an employer to bargain
with the representative of its employees in good faith with re-
spect to “wages, hours and other terms and conditions of em-
ployment.” NLRB v. Borg-Warner Corp., 356 U.S. 342, 349
(1958); Fiberboard Corp. v. NLRB, 379 U.S. 203, 210 (1964).
Section 8(a)(5) also obligates an employer to notify and consult
with a union concerning changes in terms and conditions of
employment before imposing such changes. NLRB v. Katz, 369
U.S. 736, 743 (1962). When a majority of the unit employees
have selected the union as their representative in a Board-
conducted election, the obligation to bargain, at least with re-
spect to changes in terms and conditions of employment, com-
mences not on the date of certification, but as of the date of the
election. Alta Vista Regional Hospital, 357 NLRB 326, 327
(2011). Accord: Mike O’Connor Chevrolet-Buick-GMC Co.,
209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d
684 (8th Cir. 1975). The Board explained in Mike O’Connor
Chevrolet, supra,

The Board has long held that, absent compelling economic
considerations for doing so, an employer acts at its peril in
making changes in terms and conditions of employment dur-
ing the period that objections to an election are pending and
the final determination has not yet been made. And where the
final determination on the objections results in the certifica-
tion of a representative, the Board has held the employer to
have violated Section 8(a)(5) and (1) for having made such
unilateral changes. Such changes have the effect of bypassing,
undercutting, and undermining the union’s status as the statu-
tory representation of the employees in the event a certifica-
tion is issued. To hold otherwise would allow an employer to
box the union in on future bargaining positions by implement-
ing changes of policy and practice during the period when ob-
jections or determinative challenges to the election are pend-
ing.

(Id. at 703 (footnotes omitted).)
The Respondent’s stated position at trial was that because the
election was not certified until November and because the 9–8
vote in favor of the Union on September 17 included 3 chal-
lenged ballots, the Respondent “was not bound by the union
because there was no determination on that day [September 17]
. . . there was no winning . . . [so Respondent] who has employ-
ees at will who he [Respondent] can layoff, fire, do basically
whatever he wants” without any risk of being subject to the
Act. (Tr. 344–345, 374–375.) As shown above, however, this
position is contrary to Board law as referenced above. See also
Whitewood Maintenance Co., 292 NLRB 1159, 1211 (1989),
enfd. sub nom. Texas World Service Co. v. NLRB, 928 F.2d
1426 (5th Cir. 1991). Moreover, the Respondent admits that it
did not notify the Union prior to laying off employees Mota and
Olguin and that it did not bargain with the Union prior to laying
off employees Mota and Olguin.
The record contains only the Respondent’s self-serving and
conclusory statements that because there was no work the
changes were necessitated by compelling economic considera-
tions. No evidence was submitted, however, showing extraor-
dinary, unforeseen events occurring that had a major economic
effect on the Respondent. As stated above, this evidence is
contradicted by other evidence and no evidence was presented
showing that the Respondent made its decision to fire Olguin
and Mota before the union election. Thus, I find that: (1) the
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 393
Respondent’s shifting reasons for laying off employee Olguin;
(2) the Respondent’s hiring new employees soon after the
layoffs and its not offering employees Olguin and Mota theirs
jobs back before hiring new workers; (3) Olguin’s and Mota’s
credible testimony that at the time of their layoffs their amount
of work and work hours remained unchanged; and (4) the Re-
spondent’s incorrect application of current Board law repudi-
ates its unsupported argument that there were compelling eco-
nomic reasons for their employees’ layoffs. In so doing, the
Respondent assumed the risk. Because the final determination
in the representation proceeding resulted in the certification of
the Union, the Respondent violated Section 8(a)(5) and (1) of
the Act by its unilateral actions referred to above.
F. Discriminatory Treatment of Discharged Union Employees
Motive-based allegations of discrimination are decided under
the framework of the Board’s Wright Line decision.11 Dis-
charge because of an employee’s membership in or activities on
behalf of a labor organization violates Section 8(a)(3). The
General Counsel’s initial burden under Wright Line is to show
that the alleged discriminatee’s protected conduct was a moti-
vating factor in the discharge. The elements commonly required
to support such a showing are union or other protected activity
by the employee, employer knowledge of that activity, and
antiunion animus on the part of the employer. See, e.g., Austal
USA, LLC, 356 NLRB 363 (2010); Willamette Industries, 341
NLRB 560, 562 (2004). The timing of the discharge in relation
to the alleged protected conduct may also be relevant. See, e.g.,
Best Plumbing Supply, 310 NLRB 143 (1993); Embassy Vaca-
tion Resorts, 340 NLRB 846, 848 (2003).
Generally, the Acting General Counsel relies on evidence12
such as the timing of the employer’s action,13 pretextual mo-
tives,14 inconsistent treatment of employees,15 and shifting ex-
planations provided by the employer.16 Fluor Daniel, Inc., 311
NLRB 498 (1993). “Since motive is critical to a finding of an
8(a)(3) violation, but since direct evidence of motive is rare,
one must look to all of the attendant circumstances to determine
whether the Respondent acted improperly or not.” Keller Mfg.
Co., 237 NLRB 712, 734 (1978). See also Atlantic Metal
Products, Inc., 161 NLRB 919, 922 (1966). Moreover, where
the employer’s “given reason for termination is implausible,
then that fact tends to prove an attempt to disguise the true, and
unlawful, motive.” Keller Mfg. Co., citing Capitol Records,
Inc., 232 NLRB 228 (1977). See also J. S. Troup Electric, 344
NLRB 1009 (2005) (Board will infer an unlawful motive if the

11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
12 See also Asociacion Hospital Del Maestro, 291 NLRB 198 (1988)
(finding that the employee’s union activities were widespread and
known to the employer and that there was companywide union ani-
mus); White-Evans Service Co., 285 NLRB 81 (1987) (animus found
where employer fired two of the most outspoken union supporters and
refused to rehire them even though they continued seeking employees).
13 Bay State Ambulance Rental, 280 NLRB 1079 (1986).
14 Abbey Island Park Manor, 267 NLRB 163 (1983).
15 Carpenters Health & Welfare Fund, 327 NLRB 262 (1998).
16 NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263 (7th Cir.
1987).
employer’s action is “baseless, unreasonable, or so contrived as
to raise a presumption of unlawful motive”).
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, as noted even
without direct evidence. Evidence of suspicious timing, false
reasons given in defense, failure to adequately investigate al-
leged misconduct,17 departures from past practices, tolerance of
behavior for which the alleged disciminatee was fired, disparate
treatment of the discharged employees, and reassignments of a
prounion from former duties isolating the employee, all support
inferences of animus and discriminatory motivation. Adco Elec-
tric, 307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir.
1993); Electronic Data Systems Corp., 305 NLRB 219 (1991);
Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); Bourne
Manor Extended Health Care Facility, 332 NLRB 72 (2000);
Visador Co., 303 NLRB 1039, 1044 (1991); In-Terminal Ser-
vices Corp., 309 NLRB 23 (1992); Nortech Waste, 336 NLRB
554 (2001); Bonta Catalog Group, 342 NLRB 1311 (2004);
L.S.F. Transportation, Inc., 330 NLRB 1054 (2000); and Medic
One, Inc., 331 NLRB 464 (2000).
Once the General Counsel makes a showing of discriminato-
ry motivation, the burden of persuasion shifts to the employer
to demonstrate that the same action would have taken place
even in the absence of the protected conduct. Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958, 961 (2004). In other words,
under Wright Line,

an employer cannot carry its burden of persuasion by merely
showing that it had a legitimate reason for imposing discipline
against an employee, but must show by a preponderance of
the evidence that the action would have taken place even
without the protected conduct.

North Carolina License Plate Agency #18, 346 NLRB 293, 294
(2006). If the evidence produced by the employer is found to be
pretextual, the inference of wrongful motive established by the
Acting General Counsel is left intact. Frank Black Mechanical
Services, 271 NLRB 1302 (1984); Limestone Apparel Corp.,
255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). In
short, a finding of pretext defeats any attempt by the employer
to show that it would have discharged the discriminatee absent
his or her (protected) union activities. Golden State Foods
Corp., 340 NLRB 382 (2003).

1. Olguin’s layoff violated Section 8(a)(3) and (1)
The Acting General Counsel alleges in paragraphs 7 and 11
of the complaint that, on September 20 after the representation
election for employee Olguin, the Respondent laid him off
which is a form of discrimination in regard to the hire or tenure
or conditions of employment of its employees, thereby discour-
aging membership in a labor organization in violation of Sec-
tion 8(a)(3) and (1) of the Act. As such, the Acting General
Counsel asserts that Olguin was terminated for engaging in

17 The Board advises that the investigation should be full and fair.
The Board has also noted, however, that while an employer’s failure to
conduct a full and fair investigation into alleged misconduct of an em-
ployee may constitute evidence of discriminatory intent, such failure
will not always constitute evidence of such intent. Hewlett Packard
Co., 341 NLRB 492 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
union and protected concerted activities and that the Respond-
ent’s action violated Section 8(a)(3) and (1). The Wright Line
burden-shifting analysis set forth above is applicable to Ol-
guin’s termination. Therefore, the Acting General Counsel must
establish that Olguin was engaged in protected conduct, that the
Respondent knew about his protected conduct and that union
animus was a motivating factor in the Respondent’s decision to
terminate Olguin.
On this record, the Acting General Counsel has met his ini-
tial burden of proving that the Respondent fired Olguin because
he, along with Mota, was a leader in the Union’s campaign and
because he was subpoenaed to testify in a Board proceeding in
support of the Union’s election petition. Olguin clearly engaged
in protected concerted activities by testifying at the Board hear-
ing on June 17. Owner Lopez attended the hearing as well,
including on June 17, and saw employee Olguin attend the
hearing and testify on behalf of the Union. (Tr. 63–64, 70, 202–
203; GC Exh. 5 at 44, 246.) As stated above in addition to his
testifying on behalf of the Union at the preelection hearing as
stated above, employee Olguin was the leader in the Union’s
organizing campaign and he regularly helped organize and
attend union meetings. (Tr. 200–201, 454.)
The Respondent initially argued that Olguin’s layoff was due
allegedly because there was no work. (Tr. 86, 214–215, 330,
576, 579–581; GC Exhs. 7 and 20.) At trial, the Respondent’s
argument shifted and became that employee Olguin was laid off
because he did not have a valid driver’s license despite being
alerted by employee Olguin in December 2009 that he did not
have a valid driver’s license. (Tr. 298–301, 361–362, 522.)
Thus, I find that the Acting General Counsel has presented
evidence that establishes that the reasons given for the Re-
spondent’s layoff of Olguin are pretextual—that is, either false
or not in fact relied upon and the Respondent fails by definition
to show that it would have taken the same action for those rea-
sons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis. See Gold-
en State Foods Corp., 340 NLRB 382, 385 (2003). See also
Rood Trucking Co., 342 NLRB 895, 898 (2004).
In addition, the Respondent’s animus against the Union is
shown by the independent 8(a)(1) violations I have found as
described below. Furthermore, there is suspicious timing as
Olguin was laid off on the first business day after the Union’s
successful election on September 17. I find that employee Ol-
guin’s sudden September 20 layoff being so close in time to the
Union’s successful election is further evidence of the Respond-
ent’s antiunion animus. Finally, as stated above, when Mota
asked Owner Lopez if he was going to give Mota his job back,
Owner Lopez began to laugh and told employee Mota that there
was no way he would do so because employees Mota and Ol-
guin had filed a union “complaint.” (Tr. 391.) Employee Olguin
also spoke to Owner Lopez after his layoff. (Tr. 218.) Owner
Lopez told employee Olguin at that time at a jobsite that every-
one from the Union were good-for-nothing assholes who simp-
ly wanted employee Olguin’s money. (Tr. 219–220.) In these
circumstances, the Acting General Counsel has met his burden
of showing improper antiunion animus for the job termination
of employee Olguin.
Where, as here, the Acting General Counsel makes a strong
showing of discriminatory motivation, the respondent’s Wright
Line defense burden is substantial. Bally’s Atlantic City, 355
NLRB 1319, 1321 (2010). I find that, on this record, the Re-
spondent has not overcome that substantial burden and persua-
sively shown that it would have fired Olguin absent his union
and protected activities. Also, much of the Respondent’s de-
fense is reliant on testimony at trial from Owner Lopez which I
have found to be contradictory and noncredible. Consequently,
I reject the Respondent’s noncredible version of the facts por-
trayed through Owner Lopez as he was an unreliable witness.
The Respondent has not shown that it would have terminated
Olguin in the absence of his union leadership, support and pro-
tected concerted activities including his testifying for the Union
at the June Board proceeding. Consequently, I find that the
Respondent violated Section 8(a)(3) and (1) of the Act by lay-
ing off employee Olguin.
2. Mota’s layoff violated Section 8(a)(1) and (3)
On this record, the same Wright Line analysis applies to the
termination of Mota, as the Acting General Counsel asserts that
Mota was also laid off for engaging in protected concerted
activities and that the Respondent’s action violated Section
8(a)(3) and (1). Like employee Olguin, Owner Lopez viewed
employee Mota as one of the union leaders and witnessed Mo-
ta’s direct assistance to the Union at the union election on Sep-
tember 17. Owner Lopez also had knowledge that employee
Mota was working directly with the Union in the initial organ-
izing drive and he would make telephone calls to the Respond-
ent’s employees to inform them of upcoming meetings with
union representatives. (Tr. 414, 454.) Specifically, employee
Mota spoke to coworkers to convince them to support the Un-
ion, and he also helped organize and regularly attended union
meetings. (Tr. 381–382, 454.)
On September 17, as the election was under way, while em-
ployees were gathered outside of the Respondent’s work yard
area housing the ballots, employee Mota arrived to greet his
coworkers to encourage them to vote in the presence of Owner
Lopez who was seated in his truck approximately 15 feet away.
Owner Lopez observed Mota meet with his coworkers and hand
out coffee and donuts to them. (Tr. 382–383, 511–512.) After
talking to his coworkers, employee Mota led them into the ad-
jacent construction yard area to vote while Owner Lopez
watched from a short distance. (Tr. 324–326, 385, 511–512.)
Employee Mota also voted on September 17 with the other
employees. (Tr. 210, 214, 272, 329, 384–385.) Mota’s protect-
ed concerted activity is protected by the Act. As with Olguin, at
the time of Mota’s layoff on September 17, the Respondent
knew of Mota’s protected concerted activities in support of the
Union. It does not take a leap of faith to tie Mota’s termination
to the same unlawful treatment from the Respondent that began
at the time the Respondent’s principal met with Olguin on
June 18 and described the threats, interrogation, and promises
discussed below that would follow the prounion landscapers
Olguin and Mota.
As with Olguin, the Respondent’s numerous unfair labor
practices demonstrate antiunion animus as does the suspicious
timing of the Respondent’s layoff in relation to the union elec-
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 395
tion that was directed towards Mota to retaliate against him.
Significantly, the Respondent laid off Mota later the same day
as the successful election on September 17. Where, as here, the
Acting General Counsel makes a strong showing of discrimina-
tory motivation, the respondent’s Wright Line defense burden is
substantial. Bally’s Atlantic City, 355 NLRB 1333, 1336
(2010). I find that, on this record, the Respondent has not over-
come that substantial burden and persuasively shown that it
would have fired Mota absent his union and protected activity.
The Respondent argues that Mota was justifiably terminated
due to a lack of work. At trial, however, neither Owner Lopez
nor his brother presented any evidence as Owner Lopez
claimed that MLopez had prepared a list of employees to lay
off that included employee Mota well in advance of the Sep-
tember 17 election. Instead, Owner Lopez fabricated facts that
ignored more credible testimony. In addition, Owner Lopez’
true animus toward employee Mota came forth, as stated above,
when Mota asked Owner Lopez if he was going to give Mota
his job back, Owner Lopez began to laugh and told employee
Mota that there was no way he would do so because employees
Mota and Olguin had filed a union “complaint.” (Tr. 391.) In
these circumstances, the Acting General Counsel has met his
burden of showing improper antiunion animus for the job ter-
minations of employees Olguin and, as discussed below, Mota.
In conclusion, I find that the Respondent has not shown that
it would have terminated Mota in the absence of his union lead-
ership and protected concerted activity including his assisting
employees at the union election. Consequently, I find that the
Respondent violated Section 8(a)(3) and (1) of the Act by lay-
ing off employee Mota.
G. The Respondent Violated Section 8(a)(4) and (1) of the Act
by Laying Off Employee Olguin Because he Testified at the
Representation Hearing in Case 31–RC–008811
The Acting General Counsel alleges in paragraphs 8 and 12
of the complaint that employee Olguin’s testimony at the June
representation hearing in Case 31–RC–008811 caused the Re-
spondent’s September 20 lay off of him in retaliation or dis-
crimination against employees for filing charges or giving tes-
timony under the Act in violation of Section 8(a)(4) and (1) of
the Act.
I agree and find that the evidence referenced above shows
that the Respondent unlawfully laid off employee Olguin be-
cause he testified at the June representation hearing in Case 31–
RC–8811. The same Wright Line analysis discussed above
under Section 8(a)(3) and (1) of the Act for the Respondent’s
unlawful layoff of employee Olguin because of his union ac-
tivities also applies to the instant retaliation allegations under
Section 8(a)(4) and (1) of the Act. See Freightway Corp., 299
NLRB 531, 532 fn. 4 (1990) (Board applies Wright Line analy-
sis exactly the same to alleged 8(a)(4) violations). Moreover,
Owner Lopez’ animus toward employee Olguin’s appearance
and testimony on June 17 is further demonstrated by his unlaw-
ful acts the very next day after the June 17 representation hear-
ing as discussed below including illegal interrogation, threats,
and promises of extra money and prevailing wage jobs. Conse-
quently, I find that the Respondent violated Section 8(a)(4) and
(1) of the Act by laying off employee Olguin because he testi-
fied at the June representation hearing.
H. Independent 8(a)(1) Violations
The complaint alleges at paragraphs 9 and 13 that the Re-
spondent violated Section 8(a)(1) of the Act at the June 18
meeting between Owner Lopez and employee Olguin when
Owner Lopez: (1) interrogated employee Olguin about the his
union activities and sympathies; (2) threatened employee Ol-
guin with closing the business if he or his fellow employees
selected the Union as their bargaining representative; (3) prom-
ised employee Olguin the more lucrative and higher paying
prevailing wage jobs to discourage him and his fellow workers’
support for the Union; and (4) gave employees money to dis-
courage their support for the Union.
I find that on June 18, Owner Lopez spoke to employee Ol-
guin alone at the beginning of a workday while other employ-
ees were milling around the Respondent’s yard. Speaking in
both English and Spanish, Owner Lopez initiated the conversa-
tion topic concerning the Union and asked Olguin if he knew
what the Union was. Olguin responded that he was aware of the
benefits a union can provide. Owner Lopez then told Olguin
that Olguin did not know what the Union was and offered him
higher paying prevailing wage jobs, “[I]f [Olguin] want[s] more
money or if [he] want[s] prevailing work, just tell me.” Later,
Owner Lopez said to Olguin: “Think about it. If I want, I can
close down the company [the Respondent] and I [can] open it
again the day after tomorrow with a different name. What are
the people going to do?”
Traditionally, the Board looks to the “totality of the cir-
cumstances” in determining whether a supervisor’s questions to
an employee about his protected activity were an unlawful in-
terrogation under the Act. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom UNITE HERE v. NLRB, 760 F.2d 1006
(9th Cir. 1985). In Medcare Associates, Inc., 330 NLRB 935
(2000), the Board listed a number of factors considered in de-
termining whether alleged interrogations under Rossmore
House were coercive. These are referred to as “Bourne factors,”
so named because they were first set forth in Bourne v. NLRB,
332 F.2d 47, 48 (2d Cir. 1964). These factors include the back-
ground of the parties’ relationship, the nature of the information
sought, the identity of the questioner, the place and method of
interrogation, and the truthfulness of the reply. Under this test,
either the words themselves, or the context within which they
are used, must suggest an element of interference or coercion.
Stabilus, Inc., 355 NLRB 836, 849 (2010).
Based on my factual findings set forth above, I find merit in
all of the complaint allegations concerning the June 18 meeting
between Owner Lopez and employee Olguin just 1 day after
Owner Lopez witnessed Olguin testify on behalf of the Union
at the representation hearing and before Olguin would return to
testify later that month. (Tr. 64–65, 67, 70, 81, 117, 194, 203–
208, 292, 296, and 316.) First of all, the conversation between
the two contained, among other things, Owner Lopez’ interro-
gation of employee Olguin as it took place in the context of a
hostile conversation as Olguin had not brought up the Union in
the conversation prior to Owner Lopez doing so and the con-
versation evolved to Owner Lopez’ unprovoked veiled threat of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
business closure if employee Olguin continued his support for
the Union. See Hoffman Fuel Co., 309 NLRB 327, 327 (1992)
(Employer’s questioning union supporters of their union senti-
ments coupled with veiled threats of a business shutdown con-
stitutes unlawful interrogation.). Moreover, I find that Owner
Lopez had no legitimate purpose for questioning employee
Olguin about the Union and, similar to the facts in Hoffman
Fuel Co., the totality of Owner Lopez’ conversation with em-
ployee Olguin “had a reasonable tendency to restrain or coerce
[employee Olguin] in engaging in union activities and therefore
constitute[s] a coercive interrogation.” Hoffman Fuel Co., 309
NLRB at 327. Under these circumstances, I find that the Re-
spondent violated Section 8(a)(1) of the Act by coercively in-
terrogating Olguin on June 18 about his union activities and
sympathies.
Cumulatively, these statements are alleged to unlawfully
threaten employee Olguin and other prounion employees with
the loss of their employment should they choose the Union as
their collective-bargaining agent. The lead case on this subject,
and others, is NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969), where the Court stated:

An employer is free to communicate to his employees any of
his general views about unionism or any of his specific views
about a particular union, so long as the communications do
not contain a “threat of reprisal or force or promise of bene-
fit.” He may even make a prediction as to the precise effects
he believes unionization will have on his company. In such a
case, however, the prediction must be carefully phrased on the
basis of objective fact to convey an employer’s belief as to
demonstrably probable consequences beyond his control. . . .
If there is any implication that an employer may or may not
take action solely on his own initiative for reasons unrelated
to economic necessities, and known only to him, the state-
ment is no longer a reasonable prediction based on available
facts, but a threat of retaliation based on misrepresentation
and coercion, and as such without the protection of the First
Amendment.

Owner Lopez threatened the Respondent’s employees that by
joining the Union, Olguin and other union landscapers will lose
their jobs at the Respondent. In the context of the Respondent’s
other contemporaneous unfair practices, it is clear that the job
terminations or layoffs would be caused by the Respondent’s
reaction to the union campaign and a successful union election.
Thus, Owner Lopez’ statement amounted to an unlawful threat
of reprisal not made on the basis of objective fact. See Patsy
Bee, Inc., 249 NLRB 976, 977 (1980) (Finding violation where
employer had no indication from union that it would make
demands which would cause economic hardship, let alone plant
closure; nor did he have evidence that his customers might even
pull their contracts.). Under these circumstances, I further find
that the Respondent violated Section 8(a)(1) of the Act by
threatening its employees with closing the business on June 18
if they selected the Union as their bargaining representative.
Furthermore, Owner Lopez’ promise to the Respondent’s
employees including Olguin on June 18 of higher paying pre-
vailing wage jobs to discourage their support for the Union was
violative of Section 8(a)(1) of the Act and constitutes interfer-
ence with the employee’s Section 7 rights. At that time, Owner
Lopez clearly knew of the union activity and the Board hearing
the day before with resumption later in the month, and he was
intent on defeating the organizing campaign by improperly
influencing Olguin with increased benefits in return for him not
testifying for the Union later in the month and further support-
ing the Union at the Respondent.
Finally, consistent with my factual findings set forth above, I
further find that Owner Lopez also gave the Respondent’s em-
ployees money when he handed employee Olguin $100 for the
first time on June 18 and told him to use the money not only as
reimbursement for minor work expenses but to buy Olguin and
other respondent employees lunch. I further find that this $100-
money payment was intended at least in part as an inducement
to dissuade employee Olguin from continuing to support the
Union. See Bourne Co., 144 NLRB 805, 815 (1963) (Employer
violates Sec 8(a)(1) of the Act by giving money to an employee
during a union organizing drive.). Here, too, Owner Lopez’
monetary inducement to employee Olguin and his coworkers is
violative of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Owner Lopez and MLopez are supervisors within the
meaning of Section 2(11) of the Act.
4. By laying off employees Olguin and Mota on September
17 and 20, 2010, respectively, without prior notice to the Union
and without affording the Union an opportunity to bargain with
respect to this conduct and the effects of this conduct, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
5. By laying off employees Olguin and Mota on September
17 and 20, 2010, respectively, because they support the Union
or engage in protected concerted activities, such as testifying at
a representation hearing or assisting employees cast their bal-
lots in support of the Union, the Respondent violated Section
8(a)(3) and (1) of the Act.
6. By laying off Employee Olguin on September 20, 2010,
because he testified at a representation hearing before the Board
in Case 31–RC–008811, the Respondent violated Section
8(a)(4) and (1) of the Act.
7. Respondent engaged in conduct in violation of Section
8(a)(1) of the Act:
(a) By interrogating employee Olguin about his union mem-
bership, sympathies and/or activities on June 18, 2010.
(b) By threatening employee Olguin on June 18, 2010, to
close its business if he continued his union organizational activ-
ities.
(c) By promising employee Olguin prevailing wage jobs on
June 18, 2010, if he refrained from union organizational activi-
ties.
(d) By giving employee Olguin and his co-workers money
on June 18, 2010 if they refrained from union organizational
activities.
8. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 397
9. The above violations are unfair labor practices within the
meaning of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist from engaging in such conduct in the future and to take
certain affirmative action designed to effectuate the policies of
the Act. To remedy the Respondent’s violations of Section
8(a)(1) of the Act, I shall recommend that the Respondent post
and abide by the attached notice to employees.
Having found that Respondent unlawfully laid off employees
Ruben Olguin Leyva (Oliguin) and Omar Mota Garcia (Mota),
I shall order it to offer them full and immediate reinstatement to
their former jobs, or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights and privileges previously enjoyed, and to
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them. Back
pay shall be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), and Kentucky River Medical Center, 356 NLRB 6
(2010). The Respondent shall also be required to remove from
its files any and all references to the unlawful lay offs, and to
notify employees Olguin and Mota in writing that this has been
done and that such adverse actions will not be used against
them in any way.
[Recommended Order omitted from publication.]