Liberty Glass & Metal, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2015

31-CA-149721 (N.L.R.B. Dec. 31, 2015)

JD(SF)-50-15
Upland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
LIBERTY GLASS & METAL, INC.
and

Cases 31-CA-149721
31-CA-151870
31-RC-147046
PAINTERS AND ALLIED TRADES
DISTRICT COUNCIL 36
ERRATA
On December 15, 2015, I issued my Decision and Recommended Order on Objections to
Election in the above-captioned case (JD (SF)-50-15) ("the decision"). On page 8 of that
decision, on line 28 and again on line 30, it states that Respondent filed 6 objections to the
conduct of the election on April 9, 2015, and thereafter withdrew 3 of those objections. The
decision should be corrected to state that the Union/Petitioner filed the objections and thereafter
withdrew 3 of the objections.
SO ORDERED
Dated: Washington, D.C., December 31, 2015.
/ ,
/ ‹,2 /
Ariel.L. SotolongO
Administrative Law Judge

JD(SF)-50-15
Upland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
LIBERTY GLASS & METAL, INC.
and

Cases 31-CA-149721
31-CA-151870
31-RC-147046
PAINTERS AND ALLIED TiZADES
DISTRICT COUNCIL 36
Juan Carlos Gonzalez, Esq., for the General Counsel.
Thomas A. Lenz, Esq.
(Atkinson, Adelson, Loya, Ruud & Romo),
for the Respondent/Employer.
Daniel B. Rojas, Esq. and Jonathan Cohen, Esq.
(Rothner, Segall & Greenstone),,„: ,
for the Petitioner/Charging Party.
DECISION AND RECOMMENDED ORDER
ON OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. This case was tried before me
in Los Angeles, California, on September 21-22, 2015, pursuant to an Order Consolidating
Cases, Consolidated Complaint and Notice of Hearing issued in Cases 31-CA-149721 and 31-
CA-151870 issued by the Regional Director on July 31, 2015, and an Order Consolidating Cases
and Notice of Hearing on Objections (in Case 31-RC-147046) issued by the Regional Director
on August 11, 2015. The complaint alleges that Liberty Glass & Metal, Inc. (Respondent or the
Employer), violated Section 8(a)(1) of the National Labor Relations Act (the Act) by impliedly
threatening employees with job loss (for engaging in union or protected activity), and by
informing employees that selecting Painters and Allied Trades District Council 36 (the Union or
the Petitioner) as their representative would be futile or would have no effect on their wages or
benefits. Additionally, in the consolidated representation case, the Union filed six objections
alleging that conduct by Respondent during the pre-election period tainted the results of the
JD(SF)-50-15
election, which the Union avers should be overturned.' I will first address the unfair labor
practices alleged in the complaint.
I. The Allegations of the Complaint
5
A. Findings of Fact
Jurisdiction and Labor Organization Status
10 Respondent admits, and I find, that it is a corporation with an office and place of business
in Upland, California, where it is engaged as a contractor in the construction industry performing
glazing work. In conducting its business operations during the 12-month period ending on
March 9, 2015, Respondent purchased and received at its Upland facility goods valued in excess
of $50,000 directly from points outside the State of California. Accordingly, I find that
15 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Respondent also admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
20
B. The Alleged Unfair Labor Practices
1. Background facts
25 As briefly discussed above, Respondent installs windows and frames primarily
throughout southern California, although it occasionally operates in northern California. It is
headquartered in Upland, California, where it maintainsan office and shop, and where it builds
frames for the windows. Respondent employs about 70 glazers who work at different
construction sites. Among these jobsites are two that are germane to this case, located in Beverly
30 (BFI) and Moreno Valley (MV), California.2 Ace Epps is Respondent's president, and
Walter Fabian is Respondent's field superintendent. The complaint alleges, and Respondent
admits, that Fabian is a supervisor and an agent of Respondent.3 Respondent also employs three
of Ace Epps' sons: Aaron Epps, who is a foreman at the BH jobsite; Isaac Epps, who is .a
delivery driver and occasional installer; and Josh Epps, who is a shop foreman at Respondent's
35 facility in Upland. None of these three individuals is named in the complaint, but two of them,
Aaron and Isaac, are alleged to have engaged in objectionable conduct in the representation case,
and their supervisory status is disputed, as discussed below.
At the hearing, the Union/Petitioner withdrew three of the objections, Objections 2, 4, and 6.
2 There are actually two jobsites in Beverly Hills, located in two buildings directly across the street from each
other.
3 Although Ace Epps is not named in the complaint, he is alleged to have engaged in objectionable pre-election
conduct in the representation case, as discussed below. He is indisputably a 2(11) supervisor and 2(13) agent of
Respondent, as he admitted in his testimony that he has the authority to hire and fire on behalf of Respondent.
Indeed, he testified that he is ultimately the only person With that final authority.
2
JD(SF)-50-15
The Union began organizing Respondent's employees in late 2014 or early 2015, and it is
Respondent's alleged conduct in response to the Union's efforts that is the subject of the
allegations of the complaint, as discussed below.4

5 2. The statements by Fabian at the BH jobsite
As Respondent's field superintendent, Fabian's duties include overseeing the work and
foremen at all the jobsites, coordinating between the contractors and the shop, scheduling
production and workers, and troubleshooting jobsite problems. The foreman at all jobsites report
10 directly to him, and he reports only to Ace Epps. As part of his duties, Fabian frequently visits
the different jobsites.
Mauricio Garcia, who has worked as a glazer for Respondent at the BH jobsite since late
2014, testified that Fabian visited that jobsite in early February 2015. Fabian was present during
15 the early morning safety meeting conducted by Jobsite Foreman Aaron Epps, and attended by
approximately 15 workers. These safety meetings are routinely conducted by foremen at all
jobsites on a weekly basis. After Epps spoke, according to Garcia, Fabian spoke and said that a
"list" had been going around (for the apparent purpose of bringing the Union in).5 Fabian then
added, "[I]f you don't like our pay, go back to the Union," and then said "[T]lley don't have any
20 work." According to Garcia, Fabian sounded upset, and everyone was surprised by his remarks
(Tr. 25-30; 38-42).
Cesar Lopez has worked as a glazer for Respondent on several occasions, the last time
from January to May 2015, during which he worked at the BH jobsite. Lopez was also present at
25 the Safety meeting in February described by Garcia above, and essentially Corroborated Garcia's
testimony about Fabian's remarks. According to Lopez, during the safety meeting Fabian said
that he didn't want anyone complaining about their wages, that if they were not happy with how
much they were making, they could call the Union. Fabian then added that if they did not have
the number for the Union, he could give it to them, and then added, "[O]h,.I forgot, the Union
30 has no work for you guys." Lopez also testified that Fabian sounded upset, and in fact
intentionally dropped a notebook or clipboard at the end of his remarks, which made a loud
sound, as an exclamation point. (Tr. 55-58; 63-64.)
I found Garcia and Lopez credible based on their demeanor, internal consistency of their
35 stories, and mutual corroboration of their testimony. More importantly, their testimony was
corroborated—and expanded upon—by Fabian himself. Thus, Fabian testified for about 2 weeks
prior to the safety meeting described above, he had been hearing rumors ("scuttlebutt") that
"there was a lot of turmoil and disruption of work, of people talking about how come we
4 These background facts are not in dispute. Henceforth, transcript pages will be referred to as "Tr." followed
by the p. number(s). General Counsel's exhibits will be referred to as "GC Exh.;" Respondent's exhibits will be
referred to as "R. Exh.;" The Charging Party's/Petitioner's exhibits will be "P. Exh.;" and joint exhibits will be
referred to as Jt. Exh." Additionally,•!note that the transcript, while generally accurate, contains a number of errors.
The transcript should be corrected in the following manner: P. 121, L. 2, the word "now" should be "no;" p. 131, L.
2, "police" should be "employees;" p. 137, L. 10, the word "said" should be included between the word "Ace" and
the word "about;" p. 181, L. 23, the words "supervisor at" should be included between the word "a" and the word
"Liberty;" p. 182, L. 24, "Oakland" should be "Upland." There may be others, but these are the most prominent.
5 Although it is not clear, the "list" that Fabian mentioned may have referred to authorization cards.
3
JD(SF)-50-15
don't pay Union scale and allot of grumbling." Fabian told the workers at the meeting,
"[Y]ou're all right, you're all correct, you should be all Making Union scale, you should be
getting Union benefits, you should be working Union. All right. They don't have no work.
That's why you're here. Be quiet (or "shut up") and go to work." (Tr. 196-197; 199; 202.)6 In
5 response to my question about what he had heard, Fabian testified that he had heard (the
workers) " were standing around in groups talking about how come this isn't a Union job,
and they were distracting their work and on work hours." (Tr. 200.) Fabian further testified'that
this had been going for a Couple of weeks "during the regular working hours" and that it got to
the point where "I had to put a stop to it." (Tr. 202.) Fabian explained that what he meant by

10 telling the workers that if they wanted union scale that they should go back to the Union, was that
the reason they were working there (for Respondent) was precisely because the Union had no
jobs to offer, and that that Respondent did not pay union scale. (Tr. 203.) Fabian admitted that
while making his statements he may have raised his voice, and that the meeting—which up to
that point had been jovial, with employees joking around—"got real quiet" after he made his
15 remarks (Tr.197).
After Fabian's remarks, the meeting ended and the workers went back to their duties.
3. Respondents March 26 letter to employees'
20
The parties stipulated that on March 26, 2015, Respondent mailed a letter to all its
employees on the voting list for the upcoming election, scheduled for April 1, 2015. (Jt. Exhs.1,
2.) The letter reads as follows:
25 Gentlemen;
April 1 is an important day for all of us. On that day, the National Labor Relations Board
will conduct an election so that you can decide whether you want District Council 36 to
represent you for collective bargaining with Liberty Glass & Metal, Inc. Because your
decision will have such an important impact on you and the Company, there are some
30 things you should know and consider before your vote.
First of all, none of us believe that you need District Council 36. We believe District
Council 36 will only drive a wedge between us. We do not believe that District Council
36 cares about how competitive its signatory companies are. That is why District Council
35 36's pressure in our marketplace continues to shrink. It is also why more and more
employees around the country say no to having a union.
Some employees may think that we do not want District Council 36 because they would
cost us more money in wages and benefits. That is false! The mere fact that District
40 Council 36 represents you would have no effect on your wages or benefits. District
6 During cross-examination, Fabian said he told the workers, "[I]f you want to work Union scale, you should be
working Union," then adding "oh, yeah, they have no work." (Tr.203-204.)
7 The complaint initially alleged that Respondent had posted the letter to its employees on March 25, 2015. At
the hearing, the General Counsel amended the complaint to allege instead that on March 26, 2015, Respondent had
mailed the letter to its employees (Tr. 14-16; GC Exh. 2). As discussed below, the evidence shows that the letter (or
notice) in question was both mailed and posted on at least one jobsite (P. Exh. 2).
4
JD(SF)-50-15
Council 36 has no magical or legal power to force us to pay more than we are willing or
able to pay, nor to make any changes we do not Want to make.
The law says we have to bargain in good faith with the UNION if they win an election.
5

But nothing is automatic. We cannot and will not agree to a contract that would make us
uncompetitive. I believe that the best way to get higher wages and more benefits is for
each of us to do our individual jobs the best way we can. Doing our jobs well makes the
Company successful. As in the past, the more we work to improve the Company, the
better our future.
10
Many of you have contacted me since my site visits and expressed your support and your
hope that we stay unchanged as a company. Many of you have expressed your surprise
and disgust at hearing from many of the guys how they were told the signature cards
being distributed by the Business Agents from DC 36 were to be used to update their
15 records and to have their contact information should the union get busy again. I was told
by an entire crew of guys that the Business Agent said that they would never come after
our company to organize it if these cards were filled out. This same group of guys asked
the Business Agent ,to leave after they declined to sign the cards. One of them told me he
didn't appreciate being lied to. We all talked about the fact that DC 36 is simply a
20 business trying to impose itself onto another business. They want to collect money from
you to feed into their already huge coffers. You can help us to remain an open shop and
continue on as we have for over 10 years. You can simply vote NO on April 1st.
The letter is signed by Ace Epps, Respondent's president. As also discussed below, the
25 General Counsel alleges in the complaint (par. 7) that some of the language in this letter was
coercive and thus unlawful.8
B. Discussion and Analysis
30 1. The statements by Fabian at the BH jobsite
The General Counsel alleges that Fabian's statements to the assembled workers during a
meeting at the BH jobsite violated Section 8(a)(1) of the Act (complaint par. 6). Specifically, the
General Counsel contends that by telling employees that if they did not like their pay (or
35 benefits), they should go back to the Union—which had no jobs to offer—Respondent was
impliedly threatening employees with job loss. I agree, noting that the Board has found implied
threats of job loss in cases where the supervisors made statements closely similar to those made
by Fabian in this case. Medco Health Solutions of Las Vegas, Inc., 357 NLRB No. 25, slip op. at
2 (2011); Jupiter Medical Center Pavilion, 346 NLRB 650, 651 (2006); McDaniel Ford, Inc.,
40 322 NLRB 956, 962 (1997). The Board explained its rationale in Jupiter Medical Center, supra
at 651.
8 According to the undisputed testimony of Respondent's employee, Jose Garcia, an almost identical letter was
posted at the MV jobsite around the same time period (Tr. 92; 96; P. Exh 2). However, since the substance of this
letter is the same as the March 26 letter, which was mailed to all employees and thus had wider distribution, there is
no need to discuss the posted letter.
5
JD(SF)-50-15
The Board has long found that comparable statements made either to union
advocates or in the context of discussions about the union violate Section 8(a)(1)
because they imply that support for the union is incompatible with continued
employment Rolligon Corp., 254 NLRB 22 (1981). Suggestions that
5 employees who are dissatisfied with working conditions should leave rather than
engage in union activity in the hope of rectifying matters coercively imply that
employees who engage in such activity risk being discharged.
In its post-hearing brief, Respondent argues that Fabian's statements (that the Union had
10 no work, which is the reason the employees were working for Respondent, who did not pay
union wages) was simply the truth, and therefore was protected by the First Amendment and
Section 8(c) of the Act. I reject these arguments, noting that the Board and the courts have long
held that threatening or coercive'statements made in the context of employees exercising their
rights under Section 7 of the Act enjoy no constitutional or Section 8(c) protection. Respondent
15 also avers that these statementi'Were de minimis under the circumstances. I also reject this
argument, and note that Fabian was a high-level supervisor (indeed, the second in command at
Respondent, after Ace Epps), arid that employees credibly described his tone of voice as
suggesting that he was upset or aiy, and that indeed he slammed down a clipboard (or
something similar) at the end of his remarks to accentuate his point. Indeed, Fabian admitted
20 that)he may have raised his voice and that the meeting got real quiet when he finished speaking,
strongly suggesting that his remarks made an impact on the workers. Moreover, even if
Fabian—a former union member himself—did not intend his remarks as an implied threat, the
test is whether under the circumstances a reasonable employee would find such remarks
coercive. I conclude such remarks were coercive, for the reasons explained by the Board in
25 Jupiter Medical Center, as quoted above.
There is another aspect of Fabian's statements that also makes them coercive and
unlawful. As correctly pointed out by the Union in its posthearing brief, Fabian—by his own
admission—was attempting to shut down discussions amongst the employees during their "work
30 hours"(Tr. 200) regarding their wages (or more precisely, lack of union wages), which he found
disruptive and causing turmoil. Fabian in essence announced and implemented a rule that
prohibited employees from discussing their wages during working hours (emphasis added). To
determine the validity of this rule, I must first determine, pursuant to the Board's ruling in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), if the rule explicitly restricts
35 activities protected by Section 7. If so, the rule is unlawful. If the rule does not explicitly restrict
Section7 rights, I must examine the following criteria: (1) whether employees would reasonably
construe the rule to prohibit (or restrict) Section 7 activity; (2) whether the rule was promulgated
in response to union activity; (3) whether the rule has been applied to restrict the exercise of
Section7 rights. Lutheran Heritage, supra at 647; U-Haul Co. of California, 347 NLRB 375, 377
40 (2006), enfd. Bell v. Erwin, 255 Fed. Appx. 527 (D.C. Cir. 2007). See; also; D.R. Horton, Inc.,
357 NLRB No. 184 (2012), enf. granted in part and denied in part; 737 F.3d 344 (5th Cir. 2013).
I conclude that Fabian's rule explicitly prohibited Section 7 activity, and was thus
unlawful. In this regard I note that Fabian did not prohibit these discussions during working
45 time, which would be presumably lawful. Rather, Fabian testified that these discussions were
taking place during working hours, which he believed was causing "turmoil," which he wanted
6
JD(SF)-50-15
to put a stop to. Moreover, Fabian's directive would also appear to violate all three criteria
under Lutheran Heritage. It should be noted that the General Counsel did not advance this
particular theory of a violation in its complaint, for reasons that I am not privy to.9 Nonetheless,
this matter was fully litigated—indeed, Fabian was called as a witness by Respondent—and the

5 violation arises out of the same conversation and the same set of facts alleged in the complaint.
In these circumstances, it is permissible for me to find a violation on a different (or additional)
theory than espoused by the General Counsel. Space Needle, LLC, 362 NLRB No. 11, slip op. at
4(2015); Hawaiian Dredging Construction Co., 362 NLRB No. 10, slip op. at 2 fn. 6 (2015);
Facet Enterprises v. NLRB, 907 F.2d 963, 969-975 (10th Cir. 1990).
Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by impliedly
threatening employees with jobloss for engaging in protected activity, and by announcing and
implementing a rule prohibiting employees from discussing their wages during working hours.
15 2. The March 26 letter to employees
It is undisputed that on Maich 26 Respondent's president, Ace Epps, sent unit employees
a letter about the upcoming eleCtibir scheduled for April 1. The entire text of the letter is
reproduced above in the facts settion, on pages 4-5 of this Decision. The General Counsel
20 alleges that a portion of this letter, which states [t]he mere fact that District Council 36
1 1
represents you would have no effect on your wages or benefits implies that selecting the Union
would be futile and thus violates Section 8(a)(1) of the Act (complaint pars. 7 and 8). For the
following reasons, I disagree.
25 It is well-established that employers are free under Section 8(c) of the Act to express their
opposition to a union, so long as the employer does not expressly or impliedly make threats or
other coercive statements in expressing such views. In expressing such views, employers may
tell employees that choosing to be represented by a union does not automatically guarantee better
wages or benefits. Fern Terrace Lodge, 297 NLRB 8 (1989); Libertyville Toyota, 360 NLRB
30 No. 141, slip op. at 28-29 (2014). Indeed, employers may go further and inform employees not
only that union representation is np guarantee of better wages, but also that collective bargaining
amounts to a "roll of the dice" that Could in fact result in worse benefits or pay. City Market,
Inc., 340 NLRB 1260, 1272-1274 (2003); Mediplex of Connecticut, Inc., 319 NLRB 281 (1995).
35 The General Counsel correctly argues in its post-hearing brief that determining the
lawfulness of an employer's statement in these circumstances depends on the context of the
statement, which presumably includes the remainder of the message as well as the circumstances
in which it was made. Ironically, however, by "cherry-picking" or isolating the above sentence
from the resCof Respondent's March 26 letter, the General Counsel has deprived it of the all-
40 important context contained in the rest of the letter. By focusing on the offending sentence, the
General Counsel argues that the Ianguage implies that Respondent alone controlled the fate of
negotiations and that the Union was irrelevant. Other parts of the letter, however, stress that the
law requires Respondent to bargain in good faith, which implies that the employer was willing to
do so, and correctly points out that "nothing is automatic," and that the Union could not force
9 In all fairness, however, most of the evidence supporting this theory did not surface until Fabian himself
testified at the trial and expanded on what he had said and the reasons therefor.
10
7
JD(SF)-50-15
Respondent to agree to anything it could not afford or that would make it uncompetitive. Thus, I
find that the language of the March 26 letter more closely resembles the "nothing is automatic"
language found permissible by the Board in Fern Terrace Lodge, supra, as well as the "hard
bargaining" language found permissible by the Board in Newburg Eggs, Inc., 357 NLRB No.
171, slip op. at 3 (2011), than the language found coercive in the cases cited by the General
Counsel and the Union.") See also Star Fibers, Inc., 299 NLRB 789 (1990); Clark Equipment
Co., 278 NLRB 498, 499-500 (1986); Textron, Inc., 176 NLRB 377, 380 (1969), for other
examples of language similar to the one used by Respondent in this case, which was found
permissible by the Board.
10
Moreover, even in isolation, I do not find the sentence cherry-picked by the General
Counsel to be coercive. In that sentence, Respondent points out that the "mere" fact that the
employees select the Union would not have an effect on wages or benefits, which is another way
of saying that nothing is automati6:, .This is a correct, if perhaps clumsy, summation of the law
15 and the reality of labor-manageffient Telations. Selecting a union as collective-bargaining
representative, although an iiiii3VilOnt step, is merely the first step in what may turn out to be a
thousand-mile journey, a bargainitigjourney that could take weeks, months, or even years, and
one that ultimately might bear riOfruit, even in the absence of bad faith. Indeed, as noted above,
this type of language has been found permissible by the Board. Fern Terrace Lodge, supra, and
20 other cases cited above.
In light of the above, I conclude that the language of the March 26 letter is protected
under Section 8(c) of the Act, arid'ihat therefore it was not in violation of Section'8(a)(1) of the
Act. Accordingly, I recommend that this allegation of the complaint (par. 7) be dismissed.
25
II. The Objections
The election in this matter held on April 1,2015. On April 9, Union/Petitioner filed
six timely objections to the conduct of the election, alleging that Respondent's conduct tainted
30 the results. Thereafter, Union/Petitioner withdrew Objections 2, 4, and 6, and thus the issues
before are thOse presented by Objections 1,3, and 5. Additionally, in her Notice of Hearing on
Objections, the Regional Director added an objection not specifically alleged by the Union,
based on evidence discovered during the course of the investigation of the unfair labor practice
cases discussed above. This objection, which I will call the "objection not specifically alleged,"
35 is based on the same conduct alleged as an unfair labor practice in paragraph 7 of the complaint.
Briefly, I note that it is well settled that representation elections will not lightly be set
aside, and that the proponent of objections bears a heavy burden of proving that the conduct
alleged warrants the setting aside,,Of The election. See Safeway, Inc., 338 NLRB 525, 525-526
40 (2002), and cases cited therein. With this in mind, I will now consider the Union's objections,
which are as follows:
1° Both the General Counsel and the Union cite Smithfield Foods, Inc., 347 NLRB 1225, 1229 (2006), and the
General Counsel further cites Swingline; Co., 256 NLRB 704, 716 (1981); and Hicks-Power Co., 186 NLRB 712,
723-724 (1970). In all of these cases, however, the employers had made numerous other coercive statements that
provided the unlawful context and flavor 'to the statements. See also Fisher Island Holdings, LLC, 343 NLRB 189,
189-190 (2004). The context in the instant case, however, has the opposite effect.
8
JD(SF)-50-15
Objection 1.
the Employer, though supervisor Walt Fabian, engaged in conduct that improperly
5 affected the outcome of the election by orally promulgating and maintaining an overly
broad and discriminatory rule forbidding employees from requesting higher wages from
the Employer.
The above objection is based on the same conduct that is alleged as an unfair labor
10 practice in paragraph 6 of the complaint, which occurred on or about February 6, 2015, at the BH
jobsite. On that date, as discussed at length above, Fabian told about 15 employees assembled at
a meeting that he wanted them to stop discussing their wages during working hours, and that
they could go work for the Union if they did not like their wages. I found those statements
coercive and in violation of Section 8(a)(1) of the Act, both because they impliedly threatened
15 employees with job loss, and because Fabian in effect created a rule prohibiting employees from
exercising their Section 7 rights."
Although this conduct Wal3lainly coercive, it occurred on or about February 6, about 3
weeks before the Union filed its petition on February 25, and thus before the start of the "critical
20 period." Under well-established Board doctrine, the critical period, during which "laboratory
conditions" must be maintainect'beiins on the date the petition is filed, and runs through the date
of the election. Ideal Electric &Mfg. Co., 134 NLRB 1275 (1961); Dal-Tex Optical Co., 137
NLRB 1782 (1962). Generally, C6duct that occurs prior to the critical period is not considered
objectionable. Ideal Electric, sti' Oi.4; Data Technology Corp., 281 NLRB 1005, 1007 (1986).
25 There are exceptions to this dodrine, however, such as when the prepetition conduct is truly
egregious or is likely to have a "significant impact" on the election, Servomation of Columbus,
219 NLRB 504, 506 (1975) (violence or threats thereof); Royal Packaging Corp., 284 NLRB
317 (1987) (promises of benefits, in violation of the NLRB v. Savair Mfg. Co., 414 U.S. 270
(1970) doctrine); or when such conduct "adds meaning and dimension to related postpetition
30 conduct," Dresser Industries, 242 NLRB 74 (1979). None of these exceptions is applicable
here, however. In this regard I note that there is no evidence that Fabian's conduct was repeated
or re-affirmed during the criticf Period, or that it is related or adds meaning to any postpetition
conduct.
35 Accordingly, I recommend that Objection 1 be overruled.
Objection 3.
The Employer, through supervisor Ace Epps, engaged in conduct that affected the
40 outcome of the election by unlawfully threatening that employees would be discharged if
they chose to be represented by the Union.
In support of this objection, the Union offered the testimony of Jose Garcia, who worked
as an installer for Respondent frOM,November 2014 to May 2015. Garcia, who was working at
45 Respondent's MV jobsite, testified that about 1 to 2 weeks prior to the election, Ace Epps came
9
JD(SF).51345
1.)
to the jobsite, bringing with him soft drinks and pizza, which he gave to the workers." Garcia
testified as follows regarding what occurred during a meeting that Epps held with employees:
Q. (by MR. ROJAS) What did he say when-- during this time?

5 A. He said to be honest and vote whatever was best for us. He also said that not
everybody qualified to be an apprentice, there might be some people that weren't
going to be qualified to be apprentices.
Q. What else did he say?
A. To make sure and make the right decision.
10 Q. Did he say anything about people losing their jobs?
A. Oh, yes. He said not everybody qualified to be apprentices, and whoever didn't
,qualify to be apprentices, they weren't going to have work.
Q. Did the emplokeeiUk about this afterward?
A. Yes. They askaine‘if it was true, if everybody doesn't qualify to be an
15 apprentice. And I „answered and I said, everybody does. There's two things
you've got to have tb become an apprentice. As long as you have a high school
diploma/GED,Iiieyou pass the written exam. [Tr. 99.]
Hfico
The above testimony doeniot clearly denote a threat directly related to the outcome of
20 the election, and indeed it begs:a:question as to why, all of the sudden, Epps was talking about
apprentices. After some prodding (Tr 106), Garcia, who admitted he was a trustee for the Union
(Tr. 134); later clarified that the conversation turned to apprentices because Epps asked him
about the journeyman,to appren'tice ratios that the Union typically wants (presumably, as part of
its collective-bargaining agreeniOtS, but this isn't clear)—a question that Garcia did not answer
25 because he ,was unsure of the anSWer. During cross-examination, Garcia testified as follows
regarding what Epps said during this meeting regarding journeyman-apprentice ratios:
Q. BY MR. LENZ;.,'P',O you remember when Ace Epps spoke to employees in ;;;;-•
Moreno Valley, tallcing about apprenticeship ratios?
30 A. Excuse me. What's that?
Q. Do you remember talking about the rules on journeymen versus apprenticeship—
or journeymen versus apPrentices on the job?
A. Yes, I remember.:,
Q. And do you rerneinber any discussion about what Liberty would or should be able
35 to do if they wOei:Oi:It of—or to be in compliance with the journeyman versus
apprenticeship nunibers?
A. Yes.
Q. Okay. Let's talk about that. What was said?
A. He asked Me what'was the ratio, and I answered him. I'm not sure.
40 Q. Was there anything else said?
A. No, because IxerrienTher him asking me. He directed the question to me. And I
said: You knovi: