Katch Kan USA, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 14, 2015

16-CA-134743 (N.L.R.B. Apr. 14, 2015)

JD(NY)–15-15
San Antonio, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KATCH KAN USA, LLC
and Case No. 16-CA-134743
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL UNION,
AFL-CIO-CLC
Jonathan Elifson, Esq., Counsel for the General Counsel.
Jacob Monty, Esq., Mario Castlillo, Esq. and Nancy Molina, Esq., Monty & Ramirez, LLP,
Counsel for Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on
February 25 and 26, 2015 in San Antonio, Texas.1 The Amended Complaint herein, which
issued on February 11, 2015, was based upon an unfair labor practice charge and an amended
charge that were filed on August 15, 20142 and September 26. The Complaint alleges that on
July 28 employee Tanner Siems engaged in protected concerted activities with other employees
by engaging in a work stoppage demanding that the Respondent rescind changes in the
employees’ schedules and wages and to confirm the rescission in writing, and that the
Respondent discharged Siems on August 8 for engaging in this action. The Respondent
defends that he was discharged because he refused a work assignment that he had previously
agreed to perform.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act, and that the Charging
Party has been a labor organization within the meaning of Section 2(5) of the Act.
II. The Facts
Respondent is in the business of servicing oil drilling rigs; it provides a containment
system that is employed to catch and recycle the oil base during the drilling process. On July
28, at the conclusion of a regular safety meeting held with the employees, Stephen Ramsey, the
Respondent’s South Texas Regional Manager, announced a change in compensation which
would have resulted in the employees’ pay being reduced by as much as fifty percent. This

1 Counsel for the General Counsel’s Motion to Strike Portion of Respondent’s Brief is
granted as proposed Exhibits H and Q were not received in evidence and are not relevant as
well.
2 Unless stated otherwise, all dates herein refer to the year 2014.
JD(NY)–15-15

2
resulted in the employees refusing to go out on their regular assignments until, later that day,
the Respondent agreed to modify the changes so that they were not as drastic. On August 8,
Siems was discharged. Counsel for the General Counsel alleges that he was discharged due to
his participation with the other employees in their protected concerted activities on July 28 of
protesting the wage reduction. Respondent defends that he was discharged because he refused 5
a work assignment in Saudi Arabia that he had previously accepted.
III. The Events of July 28
Up until July 28, the employees were compensated on the basis of seven on, seven off, 10
with a minimum of forty hours of pay for the seven days off. In addition, during the seven on
days, they often worked overtime. Ramsey, the principal spokesperson for the Respondent at
this meeting, was a supervisor at the facility where Siems was employed.3 Also testifying about
this meeting were employees John Barrows, Gavin Wheeler and Siems. The Respondent
conducted safety meetings every Monday. Present on behalf of the Respondent was Ramsey, 15
John Canales, Assistant Superintendent and Mike Cresetelli, a salesman. All the regular
employees, about ten in number were present. Barrows, who had been employed by the
Respondent as a lead installer for over two years until he was terminated by the Respondent,
testified that at the conclusion of the safety meeting Ramsey stated that he had an
announcement to make about some changes in the employees schedule and compensation. 20
Their schedule was going to be changed from seven on seven off, to four on and four off, and
the forty hour minimum pay for the forty off hours was going to be eliminated. A lot of the
employees, including Barrows and Siems, spoke up and said that it was such a drastic change
that they should have been notified about it earlier. Ramsey then walked out of the office and
the employees, who “were all in shock” remained to talk about it and they all agreed not to 25
return to work until their schedule was renegotiated. Shortly thereafter, Cresetelli asked Barrows
to go to a rig and Barrows told him that he couldn’t go because his partner was not at the office
and Cresetelli told him to find somebody else. Barrows handed the paperwork to Siems, who
said that he wasn’t going under those circumstances: “I want the schedule back.” They then
moved to the front of the office and Canales told Barrows, “I need you to go to this rig” and 30
Barrows told him that he refused to take the job until they renegotiate the schedule. Ramsey
returned and asked them what they were doing and they told him that they refused to work until
their schedule was renegotiated. Ramsey then made some telephone calls and when he
returned he told them that they could have their schedule back to seven on, seven off, but
without the forty hour guarantee for the off week. Barrows, Siems and some of the others then 35
said that they wanted some documentation. Ramsey asked, “You don’t trust my word?” The
employees said that after what was done they couldn’t trust his word, and Siems said: “Your
word doesn’t mean shit.” Ramsey did not say anything, but had a surprised look on his face. He
made more phone calls and again asked Barrows to go on the rig and he agreed and went to
the rig and the other employees returned to work. 40
Siems, who was employed by the Respondent as a lead installer for in excess of two
years, testified that at the conclusion of the safety meeting on July 28, Ramsey announced that
their schedule would be reduced from seven on seven off, to four on, four off, with no forty hour
guarantee for the off week. He and about four other employees responded by saying that the 45
change would basically cut their salary in half and Ramsey said, “That’s the way it’s going to be
for now.” The employees then gathered on the porch of the facility and Canales approached
them and asked who was ready to go to work on a rig. The employees all agreed that they

3 Ramsey was terminated by the Respondent in January 2015 for “Careless discharge of
duties.”
JD(NY)–15-15

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would not go on a rig until the terms were changed and Canales and Ramsey walked away.
About fifteen minutes later they returned and asked if the employees were still refusing to go to
work and they all agreed that they were. At about that time, employee Wheeler arrived for work.
Later that day, Ramsey asked the employees what it would take to get them to return to work
and they all agreed that it should, at least, go back to seven on, seven off, and Ramsey said 5
that he would call Respondent’s headquarters. About five minutes later he returned and said
that the company would agree to seven on, seven off, but without the forty hour guarantee.
Siems, followed by about three other employees told him that they wanted it in writing and
Ramsey went to make another phone call. When he returned, he said that the company agreed
to put it in writing and that “we had his word that we would get it.” Siems told him that “his word 10
didn’t mean shit at this time.” Ramsey did not respond, but looked angry and said that they
would have it in writing by the end of the day. Ramsey then asked if anybody would go to the
rig, and Barrows said that he would, and he and the other employees returned to work.
Wheeler, who had been employed by the Respondent as a lead installer for three years 15
before he resigned in October, testified that he was not present for the safety meeting on July
28 or for the initial announcement by Ramsey, but when he arrived the employees were on the
porch and they told him what Ramsey said about the change in schedules to four on and four
off. All of the employees were angry, and when Canales asked for volunteers to work on a rig,
all of them refused. He walked away, and when he returned he again asked for volunteers to 20
work a rig and, again, all refused to go. He told them that if that was their final decision, “that
they needed to stick together.” About fifteen minutes later, Ramsey asked if they were all
refusing to work and they said that they were. Ramsey returned to the office and when he came
out he asked what it would take to get them to take the jobs that needed to be done and the
employees said that the seven on, seven off schedule would have to be reinstated and he said 25
that in order to do that he would have to speak to Nolan Todd, Respondent’s General Manager.
After making a telephone call, he returned to say that Todd agreed that they could keep their
seven on, seven off schedule. Either Siems or Barrows asked for it in writing and Ramsey said,
“You have my word that it will be done” and Siems said, “No offense, but your word doesn’t
mean shit.” Ramsey did not respond, but his face turned red and he seemed angry. Ramsey 30
returned to the office to make a phone call and returned to say that the Respondent agreed to
put it in writing. At that point, Barrows agreed to go to the rig, the other employees returned to
work and the meeting ended.
Ramsey testified that at the conclusion of the safety meeting, he told the employees that 35
he had an announcement to make that affected their schedule and pay. He told them that they
would go from a seven and seven rotation to a four and four rotation with the forty hours of pay
for their off week eliminated. He testified: “Everybody was pretty much in shock and there were
some comments flying around the room,” but he could not specifically remember what was said
and by whom. He went to lunch and, while there, he was told that Barrows had refused to go on 40
a job, so he called Todd and told him that he wanted to discharge Barrows for refusing to take
the job and to go down the list and fire everyone until somebody agreed to go, but Todd
“…advised me not to do that. He said, let’s make a deal with the guys, see if they will accept the
loss of the forty hour pay on their days off if we will continue the seven-and-seven rotation.”
Ramsey then returned to the facility and met with the employees on the porch and said, “I’ve 45
spoken to Nolan, he understands your concerns, we cannot afford to pay you forty hours for
your time off, no one does that, that’s just not something we’re able to bargain on, but we will
keep your schedule seven-and-seven.” An employee (he testified that he was ninety percent
certain that it was Siems) asked if they could get the promise in writing and he said that he
would get it for them, but he cannot remember anybody commenting on the value of his word, 50
and he was not upset that he was asked to put the promise in writing. After that, “the guys
became more calm” and he asked Barrows if he would go out on the job, he said that he would,
JD(NY)–15-15

4
and he left.
IV. Work in Saudi Arabia
Todd testified that the Respondent obtained a contract with Aramco, the Saudi Arabian 5
Oil Company to supply and maintain its equipment in Saudi Arabia; however, the number of
employees that needed to go to Saudi Arabia, as well as the date that they were to begin work
there, changed from July to September, to November and, eventually, to February 2015,
although the equipment was shipped to Saudi Arabia in September. Originally, four employees
were to go sometime in about August, but that date changed to late September and, eventually,10
to February 25, 2015, when one employee traveled to Saudi Arabia. However, four employees
traveled to Canada for training for the job on September 14; the plane tickets for this trip were
purchased on August 25. Todd testified that only one employee went to Saudi Arabia in
February: “Because that’s who they requested at this time.” The change in dates was not
Respondent’s decision, but Aramco continued to change the dates of arrival and the number of 15
employees needed. He testified that as Aramco is the largest oil producer in the world, the
Respondent was at its mercy. Because it was such an important job, when he was initially told
that four employees would be needed, he told Ramsey to pick his best employees for the job.
By email to Todd dated July 17, Ramsey stated, inter alia:
20
As of today I have committed four of my installers to the Saudi project, and I understand
that they will be relieved of duty at STS within one or two weeks. These four are John
Canales, Tanner Siems, Michael Salazar and David Salazar.
In early August, Todd received the “green light” for the project and immediately called Ramsey 25
to get the people ready.
On August 20 and August 25, Andrea Katen, Respondent’s Senior HR Generalist, wrote
to the participants in the Saudi Arabia job. Each letter contains five paragraphs as well as a
description of the compensation for the project. The sole difference between the two letters is 30
contained in the first paragraph of the letters. The first letter states:
Thank you for volunteering to participate in the Saudi Aramco project in Saudi Arabia.
Your time on this project will be on a 28 on 28 off rotation. The project will last
approximately 90 days or so. The start date of this project will be September 8, 2014. 35
The estimated rig up date is between Sept. 15th-31st and is dependent on the operator.
We will have firm travel and project dates soon.
The August 25 letter states:
40
Thank you for volunteering to participate in the Saudi Aramco project in Saudi Arabia.
Your time on this project will be on a 28 on 28 off rotation. The project will last
approximately 90 days or so. The start date of this project will be September 8, 2014.
The estimated rig up date is between Sept. 15th-31st and is dependent on the operator.
Your travel arrangements have been made. You will be departing San Antonio Monday 45
Sept 8th, 2014, going to Edmonton for training. You will return to San Antonio on Friday
the 12th. Your travel to Saudi will then be communicated to you once we have a firm
project start date.
Ramsey testified that in late June Todd told him to assemble a crew of four or five 50
employees “willing to go” to Saudi Arabia. “Todd said that the job would be financially beneficial
to the employees, but did not give any details on the compensation at that time.” He primarily
JD(NY)–15-15

5
chose experienced employees and within about two weeks he had four employees “committed”
to go, including Siems. At that time, he was in a “frenzy” hiring employees to replace these four
employees. The evidence establishes that Respondent made written job offers to eight
individuals at about this time: four as lead installers at nineteen dollars an hour, and four as
junior installers at fifteen dollars an hour. Only one of the lead installer job offers is dated 5
(August 20, and signed as accepted by the employee on the same day) and one is not signed
as accepted or dated by the proposed employee. The other two lead installer job offers were to
be effective on August 7, and were signed as accepted by the employees on that date. The
junior installer job offers were also undated but were signed as accepted on August 25, August
25, September 22 and September 24. 10
Prior to offering the job to Siems, Ramsey asked Wheeler, who told him that he thought
about it, but that it wouldn’t work for him. In his discussion with Siems in about late June, he told
him that the company was looking for volunteers to go to Saudi Arabia and asked if he was
interested in going. Siems said he was interested, but wanted to think about it. He asked about 15
the details of the job- departure date, pay scale and living conditions, but Ramsey told him that
at that time he didn’t know what the conditions would be. After Ramsey learned more about the
job, he told Siems that it would be a twenty eight day rotation, and that they would be paid an
amount while they were working, and a lesser amount while back at the shop waiting on a call.
He testified that he does not recall whether he ever told him what the wage rate would be on the 20
job. Although Siems was “initially…on the fence” about the job, over the next couple of weeks,
during about two more conversations, “his commitment became more definitive,” although
Ramsey could not recollect what was said or when it occurred. As to whether Siems expressed
any reservations about going, Ramsey testified: “I don’t remember him…I know he wanted to
know the details. But I can’t remember specifically anything he said…to that respect.” 25
Q And when…during each of those conversations with him, was he definitive about
wanting to go to Saudi Arabia, or was he…
A Initially, he was on the fence. But once we started processing his passport and visa, I 30
felt that, you know, we were firming up the decision.
Q And at any time did you tell him that he needed to go to Saudi Arabia?
A I had…an email so I don’t remember the exact date. But it would have been, say, two 35
weeks…I’m going to say two weeks prior to his termination date…I actually received a
text message from him where he expressed his reservations. And that would have been
after the wage change announcement. So, after the wage change announcement, he
backed out.
40
The next time he discussed it with Siems was on a Friday morning, when he received a call
from Todd saying that he needed the men to be on a plane to Canada from training on Monday.
He called the four men and when he spoke to Siems he said, “We’ve received the start date and
I need you to be ready to travel on Monday.” Siems replied, “Well, I’m not going.” Ramsey told
him, “If you turn down this duty assignment, I’m going to terminate you.” Siems said, “Well, I’m 45
not going to Saudi” and Ramsey told him that he was fired. The employees did not leave for
Canada on that Monday; they left several weeks later.
Siems testified that Ramsey first asked him to go to Saudi Arabia on July 11; he said
that the company was going to send a few employees to Saudi Arabia, and would he be willing 50
to go. Siems answered: “If the terms were right and I had time to think about it.” Ramsey
responded, “That’s all I need to know.” The next conversation on the subject occurred on July
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6
14, when he asked Ramsey if he knew any more details about the job and he said that he didn’t,
other than it was supposed to be at the end of August. On July 16, as he was loading his truck,
Ramsey told him that he was one of the employees chosen to go to Saudi Arabia; Siems asked
him if he knew any more about the terms and conditions of the job and he said that he didn’t,
and Siems responded that he still wanted to think about it. On July 21, Ramsey told “us” that 5
they had to get their passports and Siems said that he would, but he wanted to know the terms
and conditions of the trip prior to saying that he would go, and Ramsey said that was fine. On
the following day he went to speak to Todd and asked him if he knew any of the specifics of the
trip, and he said that all he knew was that it was supposed to be fourteen days on, fourteen
days off and roughly $250 to $500 a day. Siems said that he still wanted time to think about it. 10
Siems then went to get a passport, and while on the way, he called Todd and told him that he
didn’t feel that it was good for him to go, so he didn’t think that he would do it; Todd responded
that was fine and that they could talk about it. When he returned to the office that day he left a
message for Todd to call him, but he never did. Siems testified that at the conclusion of the
discussions on July 28, after the installers returned to work, Ramsey told him that he had 15
chosen him to go to Saudi Arabia because of his work ethic, and that as “changes were
coming,” he didn’t want him to lose any money. Wheeler was present with him at the time, and
Siems answered that he still didn’t want to go. Ramsey had an “angry look” and simply said,
“okay.” On August 4, Siems sent the following email to Ramsey:
20
Steve, I appreciate the opportunity to work overseas and selecting me out of all
employees. But I am sending this to inform you I will no longer be able to go because of
personal family matters. Once again thank you for offer the chance to go and sorry for
any inconvenience.
25
On August 8, Ramsey called Siems and told him that he needed him and the others to
be ready to fly to Canada on Monday. Siems responded that he had already told him that he
didn’t want to go, and Ramsey said that he would discuss it further with Todd and get back to
him. Up to that point he had never been told that he was required to go. Later that morning he
emailed Ramsey, stating: “Steve, I decided not to go overseas because of filling [sic] unsafe and 30
for personal Family reasons.” Siems then went to the company’s office and met with Todd. He
told him that Ramsey called him about the Saudi Arabia trip even though he had told him that he
no longer wanted to go. Todd said that he was told that Siems verbally agreed to go, and Siems
said that he had never signed anything and had “…never verbally agreed that I was a hundred
percent going.” Todd said that getting his passport was his verbal agreement to go and Siems 35
responded that they could take the cost of the passport out of his pay. Todd said that they had
already replaced him with new employees and Siems asked if the company was doing this
because he was in favor of the Union, and Todd said that it was not his support or nonsupport of
the Union, and that he would discuss the matter further with Ramsey. A couple of hours later,
Ramsey called him and asked if he was still unwilling to go and he said that he was, and 40
Ramsey said that they could talk about it on Monday at work. However, that evening he missed
a call from Ramsey and when he called him back, Ramsey said that he really needed him to go
and asked if he was still unwilling to go. When Siems said that he had already told him and
Todd that he didn’t want to go, Ramsey said that he was terminated.
45
Wheeler testified that after Ramsey told the employees on July 28 that Todd agreed that
the company would put the seven on, seven off agreement in writing, and the employees
returned to work, Siems asked Ramsey if he found anybody to replace him on the Saudi Arabia
job, but Ramsey did not respond and walked to the back of the office toward the storage room.
A minute or two later, Ramsey called Siems in the back to speak to him. Wheeler did not hear 50
the entire conversation between Ramsey and Siems, but he heard Ramsey tell Siems that
Saudi Arabia would be good for him and that he should have a “better adjusted attitude” about
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7
the situation. Siems replied that he still didn’t feel safe going there and Ramsey said that they
had already paid for his passport and Siems said that if it was about the money, they could take
it out of his pay. That was the extent of what he heard.
Barrows testified that in about the middle of July he received a phone call from Ramsey, 5
who told him that he had a great opportunity for him; he had been selected to go to Saudi
Arabia to work on a rig for the company. He responded that he would go only if the wages were
right. Ramsey said that a handful of employees had been selected to go and that he would call
him again when he knew more. A few weeks later he asked Ramsey about it, and Ramsey told
him that he wasn’t one of the employees selected to go. Wheeler testified that in late June or 10
early July, Ramsey asked him if he were interested in going to Saudi Arabia, and he answered
that he wouldn’t object to it, but wanted to know more about it. Ramsey said that he thought that
Wheeler, Siems and David and Mike Salazar would be the employees going, and that he would
tell him more about the job when he found out. About a week or two later, Ramsey approached
him and asked if he would be upset if he did not get chosen to go to Saudi Arabia and Wheeler 15
said that he would not be upset. Ramsey said that he wanted to send John Canales because he
had a DWI conviction pending and, to keep him employed, he could send him overseas,
because his driving record would not matter there.
Ramsey testified that while the four employees going to Saudi Arabia were supposed to 20
go in August, only one eventually went, and in February 2015. These changes were the result of
decisions by Saudi Aramco, not by the Respondent. A group of employees did go, however, to
Kenya, in December, and Canales was one of the employees chosen to go. Because of a
terrorist attack on Kenya the day prior to when he was to leave, he refused to go and he was
terminated. 25
V. Analysis
It does not require any case citations to establish that Siems and his fellow employees
were engaged in protected concerted activities on July 28. In fact, Respondent does not appear 30
to dispute that fact. On that day, after being told by Ramsey that their method of compensation
was being changed from seven on, seven off, to four on and four off, with the forty hour
guarantee eliminated, which would reduce their pay by an estimated fifty percent, they
complained to Ramsey about the change and refused to go out on jobs until the change was
reversed. Although Ramsey wanted to fire the employees who refused to report to their job, 35
Todd advised him not to do that, and none of the employees were discharged or disciplined for
refusing to report to their assigned job. Eventually, the company relented and reinstated the
seven on, seven off schedule, but without the forty hour guarantee and, at that time, the
employees returned to work. As all, or almost all, of the employees were involved in this protest
of the reduction of their hours and wages, it was clearly concerted and as they did not engage in 40
any unlawful conduct, it was protected as well. The issue herein is whether Siems was
discharged on August 8 for his participation in this protest, including his comment to Ramsey
that his word didn’t mean shit, or was he was discharged simply because he refused to go to
Saudi Arabia. This issue is to be judged under the guidelines of Wright Line, 251 NLRB 1083
(1980). Under that test, the Counsel for the General Counsel must initially make a prima facie 45
showing sufficient to support the inference that the protected conduct engaged in on July 28
was a “motivating factor” in the Respondent’s decision to discharge Siems. If that has been
established, the burden then shifts to the Respondent to establish that it would have discharged
him regardless of the protected activities of July 28.
50
I find that Counsel for the General Counsel has satisfied his initial burden. The installers
were understandably unhappy with the change in compensation announced by Ramsey at the
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July 28 meeting, and they manifested their unhappiness by refusing to work until it was reversed
or, at least, partially reversed. Siems was an active participant together with the other installers
in the July 28 confrontation, and I credit the testimony of Siems, Barrows and Wheeler that,
when Ramsey asked the employees to take his word that they would return to a seven on,
seven off schedule, Siems told him that his word didn’t mean shit. I do not credit Ramsey’s 5
testimony that he does not remember anyone commenting on the value of his word, and that he
was not upset that the employees told him that wanted the promise in writing. I also credit the
employees that after Siems’ comment to Ramsey, his face turned red and he looked angry,
which is a not unreasonable response to being told that his word meant shit. As Counsel for the
General Counsel has satisfied his initial burden, the final issue is whether the Respondent has 10
satisfied its burden that it would have discharged Siems even absent the events of July 28.
Where there is a conflict, I credit Siems testimony over Ramsey. I found Siems’
testimony to be credible and believable. Although Ramsey was fired by the Respondent since
the events in question, I do not believe his testimony that he could not recollect Siems saying 15
that his word did not mean shit and that he was not upset that he was asked to put his promise
in writing. It appears to me that he would remember that statement and that he would be angry
at the employee who said that his word was worthless.
Ramsey first asked Siems if he was interested in the Saudi Arabia job sometime 20
between late June, Ramsey’s testimony, and July 11, Siems’ testimony. From the first request
to the final request on August 8, Siems never said that he would be willing to go; in fact,
Ramsey’s testimony about his responses was quite vague. When he was first asked, Siems
said that he would be willing to go if the terms were right and he had time to think about it. In the
following two conversations, Ramsey could not be more specific about the terms of the job and 25
Siems said that he still wanted to think about it. On about July 22, Siems agreed to get a
passport, but still wanted to know the terms of the trip before agreeing to go and Ramsey
replied that was fine. On July 22, Todd told him some of the terms of compensation and
scheduling and he again replied that he still wanted time to think about it. After obtaining a
passport, he called Todd and told him that he didn’t feel that it was good for him to go so he 30
didn’t think that he would do it and Todd responded that was fine and that they could talk about
it. At the conclusion of the July 28 meeting, Ramsey told him that he was chosen to go to Saudi
Arabia and Siems replied that he still didn’t want to go. On August 4 Siems sent Ramsey an
email clearly stating that he would not go, and yet on August 8, Ramsey called him and told him
to be ready to go to Canada on the following Monday as if Siems had never sent him the August 35
4 email. As this evidence establishes that even if Siems did not specifically state prior to August
4 that he would not go to Saudi Arabia, it is clear that he never agreed to go and that prior to
August 8 neither Ramsey nor Todd said that he had to go. The first time that he was told that he
had to go was on August 8, four days after his email to Ramsey that he would not go. I find that
the unmistakable inference from these facts is that the events of July 28 caused the 40
Respondent to change its position on Siems going to Saudi Arabia and demand that he go at a
time that they knew that he did not want to go.
Reinforcing this finding that Siems’ refusal to go to Saudi Arabia was used as a pretext
to the real reason, his actions at the July 28 meeting, is the fact that the Respondent was not 45
affected, at all, by his refusal. Siems was told just prior to his discharge to be ready to leave for
Canada for training on Monday, yet the plane tickets for the flights to Canada were not
purchased until August 25, and the employees did not leave for Canada until September 14. No
evidence was produced to establish that the Respondent purchased airplane tickets for the
employees to travel on August 11. Although I credit the testimony that the delays were dictated 50
by Saudi Aramco, rather than the Respondent, it is clear that on August 8 there were no definite
travel plans for employees and they didn’t leave until five weeks later. Clearly, the Respondent
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9
was not prejudiced by Siems’ refusal to go. I therefore find that Siems was discharged on
August 8, not for his refusal to go to Saudi Arabia, but for the protected concerted activities that
he participated in on July 28, in violation of Section 8(a)(1) of the Act.
Conclusions of Law5
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Charging Party has been a labor organization within the meaning of Section 2(5) 10
of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by discharging Tanner Siems on
August 8, 2014 due to his protected concerted activities.
15
The Remedy
The Respondent having discriminatorily discharged Siems on August 8, 2014, it must
offer him reinstatement and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of a proper offer of reinstatement, 20
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other
grounds sub.nom., Jackson Hospital Corp. v. NLRB,, 647 F. 3d 1137 (D.C. Cir. 2011). I shall
also order the Respondent to file a special report with the Social Security Administration 25
allocating Siems’ backpay to the appropriate calendar quarters and to compensate him for any
adverse income tax consequences of receiving his backpay in one lump sum.
Upon the foregoing findings of fact, conclusions of law and on the entire record, I hereby
issue the following recommended430
ORDER
The Respondent, Katch Kan USA, LLC, its officers, agents, successors and assigns,
shall35
1. Cease and desist from discharging or otherwise discriminating against its employees
in retaliation for their protected concerted activities, or 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.40
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Offer Tanner Siems full and immediate reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without prejudice to his seniority or any 45

4 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.
JD(NY)–15-15

10
other rights and privileges previously enjoyed, and make him whole for any loss of earnings and
other benefits that he suffered as a result of discharging him in the manner set forth in the
remedy section of this Decision.
(b) File a special report with the Social Security Administration allocating Siem’s backpay 5
to the appropriate calendar quarters and compensate him for any adverse income tax
consequences of receiving his backpay in one lump sum, as prescribed in Latino Express, Inc.,
359 NLRB No. 44 (2012).
(c) Within 14 days from the date of the Board’s Order, remove from its files any 10
reference to the unlawful discharge of Siems, and within 3 days thereafter notify him, in writing,
that this has been done and that the discharge will not be used against him in any way.
(d) 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 designated by the 15
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
20
(e) Within 14 days after service by the Region, post at its facility in San Antonio, Texas
copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. 25
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 30
August 8, 2014.
(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.35
Dated, Washington, D.C. April 14, 2015
_______________________________
Joel P. Biblowitz40
Administrative Law Judge

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 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.”
JD(NY)–15-15

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected
concerted activities, and 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 offer Tanner Siems immediate and full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges
previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting
from his discharge.
WE WILL within 14 days from the date of this Order, remove from our files any reference to the discharge
of Siems, and WE WILL, within 3 days thereafter, notify him that this has been done and that the
discharge will not be used against him in any way.
KATCH KAN USA, LLC
(Employer)
Dated________________ By_______________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Room 8A24
Fort Worth, Texas 76102-6178
Hours: 8:15 a.m. to 4:45 p.m.
817-978-2921.
JD(NY)–15-15

The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-134743 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
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 BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 817-978-2925.