OS Transport LLC (CA); OS Transport LLC (NV); HCA Management, Inc.; OS Management Enterprises, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 15, 2011

32-CA-025100 (N.L.R.B. Aug. 15, 2011)

JD(SF)–31–11
San Martin, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
OS TRANSPORT LLC and HCA MANAGEMENT, INC.
and Cases 32–CA–25100
32–CA–25399
TEAMSTERS LOCAL NO. 350, 32–CA–25490
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHANGE TO WIN
Amy L. Berbower, Esq. and Yaromil Velez-Ralph, Esq.,
for the General Counsel.
Eric Becker, Esq.,
(The American Consulting Group, Inc.),
for the Respondent.
Susan K. Garea, Esq.
(Beeson, Tayer & Bodine), for the Charging Party.
DECISION
Statement of the Case
GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried in
Oakland, California, on February 22–24, and March 1–3, 2011. The initial charge was
filed by the Teamsters Local No. 350, International Brotherhood of Teamsters, Change
to Win (the Charging Party or the Union) on May 12, 2010,1 and the order consolidating
cases, amended consolidated complaint, and notice of hearing (the complaint) was
issued January 14, 2011.
The complaint alleges that OS Transport LLC (OST) and HCA Management, Inc.
(HCA) are a single employer (collectively the Respondent2) who violated Section 8(a)(1)
by interfering with, restraining, and coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act by reducing employees’ hours and wages and
threatening to close Respondent’s business, threatening to terminate all of

1 All dates are in 2010, unless otherwise indicated.
2 OS Transport is named after its founder, Oscar Sencion Sr., and HCA Management is
similarly the initials of Hilda C. Andrade, the principal managers/supervisors of Respondent’s
two interrelated entities. Sencion Sr. also runs a sole proprietorship named after the couple’s
daughter known as Crystal Tires Mobile Repair. (Tr. 774.)
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Respondent’s employees and replacing them with nonunion owner-operators if they join
the Union or because of their support for the Union. The complaint also alleges that by
participating in the acts referenced above, Respondent also violated Section 8(a)(3)
when it also terminated the employment of prounion employee Jesus Garcia Marquez
(Marquez) in October.
As the trial commenced, counsel for the General Counsel sought leave to further
amend the complaint after investigation of a new related charge filed on November 22.
Applying the Board’s standard set forth in Folsom Ready Mix, Inc., 338 NLRB 1172 fn. 1
(2003), I granted this request, as the proposed amendment did not materially prejudice
the Respondent; the amendment involved new factual matters but included much of the
same evidence as was required to litigate the matters arising from the original complaint
and as Respondent had adequate time to properly defend the new charge.
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 observation of the demeanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I find the following events occurred in the
circumstances described below during the period relevant to these proceedings.
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed on April 25, 2011 by the General Counsel and
Respondent (GC Br. and R Br., respectively),3 for the reasons set forth below I find that
OST and HCA are a single employer and that they violated the Act as alleged.
Findings of Fact
I. Jurisdiction
OST is a Nevada limited liability company and HCA is a Nevada corporation with
offices and activities in San Martin, California. Both are engaged in the business of
hauling waste and recycling materials between various landfills and recycling plants in
and around San Jose, California. In a representative 1-year period, HCA admits, and I
find, that it provides services valued in excess of $50,000 directly to Greenwaste
Recovery, Inc. (Greenwaste) which, during the same time, purchased and received
goods valued in excess of $50,000 directly from sellers located outside the State of
California. Similarly, I also find that in a representative 1-year period, OST provides
services valued in excess of $50,000 directly to HCA which, during the same time,
purchased and received goods valued in excess of $50,000 directly from sellers located
outside the State of California. Accordingly, I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent also admits that the Union is a labor organization within the meaning
of Section 2(5) of the Act.

3 Although counsel to the Charging Party attended the majority of the trial, she did not file a
posthearing brief by the extended deadline of April 25, 2011.
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II. Alleged Unfair Labor Practices
A. Background
As stated above, Respondent is engaged in the business of hauling waste and
recycling material4 between various landfills and recycling plants in and around San
Jose, California. Beginning in 2010, OST is owned by Andrade and her two children,
Oscar Sencion Jr. and Crystal Sencion, by Oscar Sencion Sr. (Sencion Sr). Andrade is
its managing partner, tax matters partner,5 and oversees all operations. Andrade also
solely owns, runs, and is the lone officer/manager of HCA which has no employees. In
addition to any profits Andrade received from HCA in 2009 and 2010, she also
distributed to herself from OST—$5617 and $35,000 in 2009 and 2010, respectively.6 R
Exhs. 13 and 14.
Sencion Sr. has operated his own trucking company for many years under the
name of Sencion Trucking. Sencion Trucks has done business hauling various
materials to and from various recycling and landfill facilities near San Jose, California,
including GreenWaste Recovery, Inc. (Greenwaste), Zanker Road Resource
Management (Zanker), and Z-Best Products (Z-Best). Sencion Sr. employed
approximately 10–15 drivers over the years to haul materials using his trucks. Sencion,
Trucking evolved to become OST in 2006.
For at least 9 years through 2009, Sencion Trucking and later OST worked with
and invoiced Greenwaste directly for the truckdriving services it provided. Andrade
worked in tandem with Sencion Sr. with Andrade maintaining financial management,
labor and contract administration for both HCA and OST while he performed field
supervisor work with the OST drivers and his client contacts at Greenwaste, Zanker,
and Z-Best. See GC 10. HCA was first incorporated on January 29, 2009, in Nevada
and, as a shell or liability shelter, inserted itself in OST’s place with Greenwaste and
used OST’s drivers for the same hauling work OST performed for years. Beginning
sometime in 2010, HCA also contracted with OST’s approximately 15 drivers and 4
mechanics. Respondent’s only customers are Greenwaste, and its affiliate, Zanker, and
Z-Best. For a 2-week period from July 16 through 31, HCA invoiced in excess of
$204,000 to Greenwaste for approximately 21 different routes for hauling loads.7 (ALJ
Exh. 4-(g) at HCA 1473–1493.) For that same time period, HCA issued a check to OST
as a subhauler in the amount of $72,135. (ALJ Exh. 4(g) at HCA 1504.)
Incredibly, Respondent claims to have no written contract with Greenwaste or
Zanker but apparently both parties have operated under an oral agreement for 10 years.
Up through 2009 or early 2010, Greenwaste paid OST before changing payment to

4 The hauled materials are comprised primarily of food waste, yard waste, trash, metal,
organic soil, wood chips, and concrete.
5 On May 11, Andrade received an employer identification number for OST from the IRS.
(GC Exh. 44.)
6 Andrade’s and Sencion Sr.’s son and daughter also received cash distributions from OST
in 2010 of $25,000 and $24,000, respectively. (See R. Exh. 14.)
7 This bimonthly amount extrapolates to in excess of $4,896,000 on an annual basis.
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HCA without any other changes in the business relationship between the entities. (Tr.
442–444, 472.) For example, OST continues to directly provide Greenwaste with a
hauling rate sheet/price diesel fuel surcharge per route list8 and the trailer lease
agreement9 for 2010–2011 remains between Greenwaste/Zanker as lessor and OST as
lessee. (GC Exhs. 22 and 23.) OST paid rent of $42,600 and $67,000 in 2009 and
2010, respectively, but Andrade testified that she also has no written lease with OST’s
yard landlord.10 (R Exh. 14.) At the OST yard in San Martin, California, Andrade would
prepare paychecks and utilize a mobile trailer office at the yard for both OST and HCA
until the trailer was ordered off the property some time after May.
Hauling operations of HCA and OST are based out of a yard in San Martin,
California. Through 2010, Andrade handled all financial, labor, and contractual matters
for both companies from a mobile trailer at the truck yard until approximately May and at
her home in San Martin thereafter. HCA and OST are held out to its customers as a
single integrated business operation. Andrade invoices Greenwaste twice monthly from
HCA based on weight tickets brought back to her by OST’s drivers for transported loads
over 6 days a week.
Drivers use OST-owned trucks, receive daily route instructions from Sencion Sr.,
and have OST pay for their diesel fuel, Nextel radios, tolls, truck repairs, tire expenses,
and truck insurance. Hours worked by OST drivers prior to May, averaged 10–12 hours
per workday. In addition, OST drivers must submit written requests to Sencion Sr. or
Andrade for time off from work. Greenwaste opens at 5 a.m. so some OST drivers need
to be there early and workdays end at 6 p.m. or occasionally 8 p.m. when busy.
OST assigned routes to its drivers on a daily basis. Some drivers would start out
with a route assigned the night before by Sencion Sr. while most drivers received daily
route assignments from Sencion Sr. based on his communications with Greenwaste,
Zanker, and Z-Best. Saturday work was also assigned by Sencion Sr. on Friday
evenings and did not go to all the drivers. One route in particular, was consistently
provided to Reynoso, Pizano, and Efrain Gutierrez until they supported the union,
complained of work conditions and testified at the NLRB representation hearing in early
May. What made the Watsonville route so attractive is that a driver received pay for
each leg of a trip and could start the workday by going to the Watsonville landfill at Z-
Best with a loaded truck and get greenwaste to drive to Greenwaste and get paid $45
for a 1–1.25 hours route before receiving a new route from Sencion Sr. though most
often the Watsonville route driver would be allowed to drive to Greenwaste with a
second full load, cut in line with the full load, empty, and get filled without having to go to
the end of the line and wait. At Greenwaste, they usually were able to get another load
to take to Z-Best. If there was more greenwaste to pick up in Watsonville then get
another load and repeat at Greenwaste. Drivers are paid by the load so it is easier to

8 OST’s diesel fuel surcharge price list to Greenwaste is a pass-through expense and is
based on an identical surcharge imposed by Zanker Road Resources San Jose to all
subhaulers. (See ALJ Exh. 4(g) at HCA 1514 and GC Exh. 22.)
9 Greenwaste owns the trailers and leases them to OST for use by OST drivers to haul
materials.
10 Notwithstanding the significant lease amounts involved, Andrade and Don Dean, from
Greenwaste, claim that OST and Greenwaste have no written contract between them.
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get more loads each way on the Watsonville route than, for example, driving 4–5 hours
round trip and fight traffic just to drop off one load at Z-Best Potrero Hills in Fairfield,
California.
Sencion Sr. is the father of Oscar Jr. and Crystal Sencion. He lived with Andrade
for 10–12 years while their children were young. He is Respondent’s yard manager and
oversees the day-to-day operations, including assigning drivers to particular routes.
Greenwaste Supervisor Ricardo Lopez very credibly testified that either he directly
contacts Sencion Sr. or his assistance does to communicate loads that need hauling
from Greenwaste and Sencion Sr. would determine which driver at OST would pick up
the load for additional compensated work. (Tr. 459, 462–464; ALJ Exh. 3(a) at 56.)
Sencion Sr. is in direct contact with Respondent’s customers and coordinates the
fluctuating workload, including assigning drivers particular loads and Saturday
schedules. OST drivers were informed in writing by Andrade and Sencion Sr. that
Andrade, as OST manager and Sencion Sr., as OST supervisor, can fire or terminate
any OST driver who is giving the company problems. Greenwaste regularly contacts
Andrade and Sencion Sr. if there are any problems with OST drivers. (GC Exh. 9; ALJ
Exh. 4(g) at HCA 1132.) OST drivers look to Sencion Sr. as their supervisor and OST
rules also provide that Sencion Sr. is the OST supervisor or operations manager using
Nextel Radio Channel No. 15 known as Oscar with the nickname Anaconda. (GC Exhs.
10, 11, 31, and 43; ALJ Exh. 5(a) at p. 19.) Andrade confirmed initially that Sencion Sr.
was OST’s field or outside supervisor.11 (ALJ-3(a) at 245.)
Sencion Sr. is reimbursed by OST for buying various truck parts for the company.
He also assists Andrade in purchasing trucks for OST and he and his own truck are
insured by OST’s business truck insurance. (GC Exh. 42.) He claims that he is doing
business as Sencion Trucking, was paid $160,000 by HCA in 2009. OST also paid
Sencion Sr.’s other business, Chrystal Tire Co., $10,000 in 2009. A check dated July 15
from HCA to Sencion Sr. in the amount of $757512 shows that compensation flowed to
Sencion Sr. from HCA and OST in 2010. (ALJ Exh. 4(g) at HCA 1505.)

11 Sencion Sr. and Andrade, as Respondent’s principal representatives did not provide
reliable testimony at the ULP hearing as much of the time their testimonies completely
contradicted their earlier testimonies from the representation hearing and related depositions. It
appeared more likely that they viewed the R-case hearing and depositions as a dry run practice
so they could fabricate new facts for the ULP hearing. Also, not believable as per Andrade that
Sencion Jr. was a supervisor of the OST drivers on May 14, 2008 when he was only 15 or any
other material time. (See GC 15.)
12 If this is a bimonthly payment to Sencion Sr., this extrapolates out to almost $182,000 for
the year 2010.
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B. The Beginning of the Union Campaign and Respondent’s Reaction
On or about January 15, Andrade and Sencion Sr. called a meeting of OST’s
drivers and mechanics in the yard and announced in Spanish that the company had
been sold to new investors and that Andrade and Sencion Sr. would no longer be the
owners.13 They did not announce who the new owners were but informed the
employees that business would continue as usual, including the functions performed in
operation of the business by Andrade and Sencion Sr. However, there were no new
investors; instead, Andrade reorganized OST in early 2010 into a Nevada LLC owned
by herself (36 percent) and her two minor children (32 percent each). She told the
drivers that OST was going to shut down if they did not individually incorporate
themselves. Andrade decided to force the drivers and mechanics to incorporate
themselves to shield her from tax liability and a few days later Andrade and Sencion Sr.
called a meeting for that purpose.14
Soon thereafter during a meeting at a nearby pizza parlor attended by all the
drivers in order to receive their paychecks, Andrade introduced Charles Naegele,
Respondent’s legal representative, as a new partner and the attorney for the “new
investors.” Naegele spoke English and Andrade interpreted for him in Spanish.
Andrade told the employees that in order to continue working, they would have to sign
various forms15 or turn in their resignation effective immediately. Andrade gave the
employees incorporation applications, which had previously been filled out by the
attorney, and were entirely in English, although many of the employees were
monolingual Spanish speakers and could not understand the forms. All of the
employees decided to sign the forms even though Andrade did not fully explain the
incorporation process or ramifications and did not give them copies of what they signed.
Andrade told the employees that their work would not change at all and only that they
would have tax benefits due to the incorporation. Andrade filed the paperwork with the
California Secretary of State on February 1, and HCA paid all costs associated with the
incorporation.
Among themselves, the drivers expressed skepticism. Pizano added that at this
January meeting about incorporation the lawyer told the drivers that incorporation was
better for the drivers because they could deduct everything—clothes, food, utilities, etc.
and pay less taxes. Sencion Sr. repeated this later to the drivers telling them that at the
end of the year the deductions would help out a lot by saving on income taxes. Pizano
credibly opined that the drivers indicated to him that incorporation would not really help
them.

13 The majority of OST drivers do not speak, read, or understand English as Spanish is their
primary language. All but one or two required an interpreter at trial.
14 Andrade issued OST drivers W-2’s reflecting their annual wages in 2009 and followed this
by issuing IRS Form 1099’s in 2010 in an attempt to reclassify OST drivers as independent
contractors and not employees. The IRS did not go along with the sham and issued Andrade
information letters dated November 29, disallowing the independent contractor label which
continued the OST drivers’ employee status. (See GC Exh. 19.)
15 The forms turned out to be incorporation documents, articles of incorporation, bylaws, and
contracts written in English and none of the drivers were instructed to seek their own legal
counsel.
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In April, drivers Marcial Barron Salazar and Marquez contacted the Union about
the changes in their company, including the incorporation. The Union began organizing
Respondent’s drivers and collected signed authorization cards. 16 On April 11, Marquez
signed an authorization card. On April 14, the Union filed a petition to represent a unit
comprised of 11 Respondent’s drivers in Case 32–RC–5761.
Also on April 14, the NLRB mailed OST notice of an April 22 representation
hearing at the NLRB’s Region 32 hearing room in Oakland, California (the NLRB
Petition). (ALJ-3(b), Exh. 15 to Andrade’s July 7 deposition.) In addition on April 19 and
20, the hearing officer in the representation hearing left voice messages on OST’s
telephone answering machine giving additional notice of the April 22 Hearing. (ALJ-2(a)
at 6.) Andrade admitted that she first became aware that OST’s drivers considered
unionizing when she reviewed the NLRB Petition on April 25 or 27 after returning from a
trip out of the country. (ALJ-3(a) at 263-64.)
On April 20, the 11 prounion OST drivers signed a joint letter of protest about the
working conditions and the forced incorporation (the protest letter ). (GC Exh. 4.)
Employee Marquez kept the protest letter as he planned to use it to show support for
Escobar who was supposed to testify at the representation hearing on the Union’s
petition on April 22. However, Respondent did not appear at the hearing and the
hearing was continued.
On April 30, Andrade and Sencion Sr. held a second meeting with the employees
at the nearby pizza parlor. Naegele was present again and Andrade once again
interpreted for him. Andrade gave each of the employees a corporation kit and once
again required them to either sign employment contracts between their “corporations”
and OST or resign from OST employment. The contracts were in English, were not
translated and employees were told that in order to continue working, they had to sign
the contracts. Even if the Respondent’s drivers could read English, these “incorporation”
documents were drafted in language that a nonlawyer is not likely to understand. The
evidence does not show that the drivers were given an adequate explanation of what
the “incorporation” documents meant. One employee, Julio Escobar (Escobar), refused
and was required to sign a resignation form. The employees continued to perform the
same duties. The only change that occurred is that Andrade stopped withholding
employment taxes from their paychecks and issued the checks to the employees’
corporate names, which was the employees name followed by “Inc.”17 During the
meeting, Naegele through Andrade told the employees that if they were thinking about
getting help from a union that it would not be possible because they were going to be
the owners of their own companies.
Following their execution of the corporation contracts in late April, the employees
continued to perform the same duties in the same manner and under the same

16 The card authorized the Union to represent the signatory in negotiations for better
wages, hours, and working conditions at OST.
17 However, Andrade had been issuing checks in this way since the beginning of January
before any discussion of incorporation.
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assignment and direction as before. The only change that occurred is that Andrade
stopped withholding employment taxes from drivers’ paychecks, instead issuing checks
to the employees’ corporate names, which was the employee’s name followed by
“Inc.”18
On May 5, at the resumed representation hearing, Marquez submitted the protest
letter to Andrade. Later that day, Andrade showed the protest letter to Sencion Sr. in the
yard at OST.
On May 6, driver Miguel Reynoso (Reynoso) called Sencion Sr. to let him know
that he had been subpoenaed to testify for the Union at the hearing the following day.
Reynoso told Sencion Sr. that he signed the protest letter in support of the Union and
that all of the other drivers were in agreement. Sencion Sr. responded that not all the
drivers had signed in, specifically: Jose Victor Vargas (Vargas) and Ceferino Urias (C.
Urias). Reynoso told Sencion Sr. that C. Urias had signed it and Sencion Sr. told
Reynoso to come meet him at the OST yard and take a look at the protest letter for
himself.19
On May 6, when Reynoso arrived at the OST yard with his wife and young son
accompanying him, Sencion Sr. and Andrade were there and spoke to him. Sencion Sr.
told Reynoso that if he was not supporting the Union, he could load up and go to
Watsonville for a load. (Tr. 255, 260.) Sencion Sr. admitted meeting with Reynoso on
May 6 at the OST yard with Andrade and that Reynoso mentioned that the OST drivers
were applying for a union. Sencion Sr. also admitted telling Reynoso that he did not
believe that having the drivers unionized was good either for the drivers or OST and that
the drivers “should think about it [unionizing] well, but it was their decision.” (Tr. 797.)
Reynoso added further details about the May 6 meeting when he credibly
explained that Sencion Sr. told him that those drivers that signed the protest letter would
be fired by the end of May. Reynoso also repeated this discussion to other drivers who
recalled hearing it from Reynoso including Pizano, Gutierrez, and Urias. Sencion Sr.
also threatened Reynoso by saying that he would close the company and not have any
drivers.20 (Tr. 255–256.)
Reynoso admitted to Sencion Sr. and Andrade that he did not read the protest
letter before he signed it. Andrade told Reynoso that she was sorry that drivers who
signed the protest letter would be fired but that she was safe because she had a job.
She also told Reynoso that he was an idiot for signing the protest letter without reading

18 However, Andrade had been issuing checks in this way since the beginning of January
before any discussion of incorporation.
19 There was a great deal of confusion over whether Ceferino signed the protest letter due to
the fact that his signature had been added by another employee with his permission but
misspelled as Serifino. (See G.C. Exh. 4.)
20 I find Reynoso’s testimony particularly credible given the fact that he testified against his
own interests as at the time of trial he remained employed at OST and is a long-time friend to
Sencion Sr. who must continue to face Respondent’s principals after trial. See S.E. Nichols,
Inc., 284 NLRB 556 fn. 2 (1987) (Current respondent employee’s testimony more reliable
because it is given against his interest to remain employed by respondent.).
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it. The three kept going around and **around at the meeting as per Reynoso with
Andrade and Sencion Sr. further reminding Reynoso that he was going to lose his job
for signing the protest letter. Sencion Sr. also mentioned to Reynoso how Julio Escobar
had resigned rather than sign incorporation documents but that he had returned asking
for his job back. Sencion Sr. further recounted to Reynoso that he had told Escobar that
he would give him his job back but Sencion Sr. told Reynoso that this was not going to
happen as he would never give Escobar his job back. Escobar had also signed the
protest letter.
Beginning on or about May 7, directly after Sencion Sr. testified at the NLRB
representation hearing, he stopped directly communicating with OST drivers and
Greenwaste Supervisor Lopez and continued to direct and assign work through OST
mechanic Felipe Campos (Campos).21 (ALJ Exh. 5(a) at pp. 6–7; ALJ Exh. 3(a) at 57–
58.) Sencion Sr. and Andrade continued to discipline and control OST drivers’ work
hours and employment status at OST in 2010.
Later in May on a Saturday at the OST yard, Sencion Sr. also approached
prounion driver Velasquez about the Union and told him that the Union was suing OST
but Velasquez corrected Sencion Sr. by saying that there was no lawsuit. Instead, OST
drivers just wanted to be in a union. This meeting took place with Sencion Sr. and Jr. 2
or 3 weeks after the May 7 NLRB hearing. Sencion Sr. further told Velasquez that OST
can get new nonunion drivers “that own their own trucks.” Sencion Sr. also told
Velasquez that with respect to the OST drivers who unionize, Sencion Sr. intended to
diminish their hours and give them just a few hours per day and pay them only $20 a
day. (Tr. 344–345.) He also said “I can get owners, people who own their own truck,
and do the work that way. And the drivers that are here, I can give them fewer work
hours and I can work with the truck owners” and give them the hours that formerly went
to the Union drivers.22 (Tr. 344.)
The representation hearing lasted 3 days and four employees, Marquez,
Reynoso, Primitivo Gusman, and Julio Escobar, testified on behalf of the Union. Despite
receiving a Board subpoena, Andrade never appeared. Sencion Sr. appeared and
testified vaguely about the company’s operations. The Region subpoenaed Andrade
and Sencion Sr. to submit to depositions which occurred over the course of 5 days in
July and September. Subsequently, the Regional Director issued a Decision and
Direction of Election on January 14, 2011. (CP Exh. 1.)

21 Campos’ testimony was evasive and his demeanor was unconvincing as he did not
appear to take his oath or appearance at hearing seriously. He was unbelievable when he
denied communicating route orders from Sencion Sr. to OST drivers after May 7, 2010 despite
credible and consistent contrary testimony from drivers Reynoso, Valequez, Marquez, Pizano,
and Sencion, Sr. himself who admitted that he stopped communicating to all union drivers after
the May 7, 2010 NLRB hearing.
22 Sencion Sr. admitted that he spoke to Cerefino Urias Velasquez around the time of the
representation hearing about a car he sold Velasquez, but he did not specifically deny making
the statements described by Velasquez. (Tr. 795.) Moreover, like Reynoso, Velasquez was a
current employee of Respondent at the time he testified, which makes it unlikely that he would
give false testimony against Respondent. S.E. Nichols, Inc., 284 NLRB 556 fn 2 (1987).
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C. Changed Terms and Conditions of Employment for Union Supporters
Almost immediately on learning of its employees’ signing of the protest letter and
their support of the Union, Respondent changed the terms and conditions of
employment and payment of wages of the prounion drivers to discourage employee
support for the Union. Respondent did this by decreasing total wages and union
supporters’ work assignments, reassigning more lucrative routes to nonunion drivers,
eliminating union supporters’ opportunities to work on Saturdays, and by not recalling
union supporters to work after their trucks broke down and/or delaying repairs of their
trucks and not providing substitute trucks as in the past. In contrast, the nonunion OST
drivers, both those employed at OST as of April and those hired after April were
rewarded with plentiful work assignments and sizeable increases in their total wages
which exceeded the pay or long-term union supporters. The decreased compensation
for prounion OST drivers and the increased compensation to nonunion OST drivers is
most apparent when reviewing the May–November wages compared to 2009 and also
when compared to a nonunion driver such as Victor Vargus (Vargus) for the same 7
months. (See GC Exh. 46.)
Specifically, Reynoso usually worked 10–12 hours daily at OST before the May 7
NLRB hearing. Also, before the May 7 NLRB hearing, Marquez would make 4–6 trips
per day at OST. Marquez averages 2–4 trips after his May 7 testimony. Reynoso
averaged 6–7 trips per day in 2009. Before the May 7 NLRB testimony, Reynoso would
work every other Saturday. After the May 7 hearing, Reynoso did not get any Saturday
work for the rest of 2010 except once on December 18. Reynoso credibly explained that
he could not just show up at Greewaste on a Saturday because he did not own the
truck. He was required to and routinely received orders from Sencion Sr. to work a
Saturday.
Marquez noticed that after his May 5 NLRB testimony, he had a changed
work/route schedule and his pay went down. Marquez was no longer assigned
Saturday work except during holiday weekends. Velasquez knew that some drivers who
signed the protest letter had their work hours reduced after May 5, but he only lost some
Saturdays. Marquez would accompany Sencion Sr. on trips to Sacramento, Bakersfield,
and Phoenix to buy trucks before May 5, but never again after the May 7 NLRB hearing.
Marquez would work some Saturdays before the May 5 NLRB hearing but not after
except maybe Saturdays during holiday weekends. Sencion Sr. no longer called
Marquez to work Saturdays after the May 5 hearing. Instead, Vargus, Rafael Martines,
and new drivers were assigned to work on Saturday by Sencion Sr.
Pizano worked 5–7 loads per day before Sencion Sr. or Andrade became aware
of the protest letter and the prounion activities in early May. Pizano would average
working only 2–4 loads per day after early May. Before the protest letter, Pizano drove
2–3 of the less profitable Potrero Hills trips per month. After the protest letter, Sencion
Sr. assigned him 10–12 Potrero Hills trips per month. Also, before the protest letter,
Pizano worked 1–3 Saturdays per month. After signing the protest letter, Pizano’s
Saturday work went away completely.
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For years, Reynoso drove the profitable Watsonville route for OST and would
routinely drive the OST truck home at night and weekends. Reynoso says Watsonville
was easier to drive to and from his home than from the OST yard. Reynoso says that
after the May 7 NLRB hearing, Sencion Sr. ordered that Reynoso no longer be allowed
to bring a truck home after work or on weekends.
After approximately May 7, Vargus, an OST driver who had not signed the
protest letter, took over Reynoso’s Watsonville route despite Vargus being a relatively
new driver at OST at that time. In addition, besides Reynoso, Pizano and Efrain
Gutierrez (the two others who had signed the protest letter) also lost their Watsonville
route with Reynoso. Reynoso and Pizano only getting to drive the Watsonville route 1
day per month after May 7. In addition to Vargus, Reynaldo Del Rio and Margarito
Ruiz, all nonunion drivers, took over the regular lucrative Watsonville route despite
having very little seniority at OST as Ruiz was hired May 13, and Del Rio hired on May
18.
After signing the protest letter, Salazar’s work went from 5 loads per day down to
2–3 loads though OST’s workload did not change. One time after signing the protest
letter, Salazar was sent home on Sencion Sr.’s orders through Rigaberto even though
there was more work to do. Once Salazar approached Andrade in October and pledged
not to support the Union, he resumed his former work assignments including occasional
Saturday work from Sencion Sr.
Pizano used to leave the OST yard before 5 a.m. before early May. After May 10,
Sencion Sr. told Pizano not to leave yard until after 6 a.m. To the contrary, Vargus was
allowed by Sencion Sr. to leave the yard before 6 a.m. after May 10. Victor Vargus, Mar
Ruiz, Rinaldo Del Rio, and Rafael Diaz Martines did not attend any union meetings and
worked Saturdays after the May 7 NLRB hearing.
Before the early May NLRB hearing, Sencion Sr. would immediately replace a
driver’s truck in need of repair either with another spare truck or Campos or another
mechanic would quickly repair a truck so a driver would not miss work. This too
changed after the May 7 hearing. After May 7 when Sencion Sr. refused to speak
directly to prounion drivers, the usual practice of immediately driving a spare truck when
a driver’s regular truck needed repair ended. (Tr. 701–702.) Thereafter, union drivers
who had signed the protest letter began missing work, sometimes for weeks at a time,
even with spare trucks available, waiting for Andrade to order replacement parts or for
repairs to be completed by Campos. This happened to Reynoso, Guzman, Marquez,
and Pizano. All drivers having their trucks repaired were required to check in with
Campos to find out the progress of the repair and Campos would contact them to advise
when their trucks would be ready. Reynoso, Guzman, and Pizano in fact returned to
work when Campos called them after each had waited without work for weeks. None of
the drivers called Andrade or Sencion Sr. to explain their absences nor submitted
written requests for time off while waiting for their trucks to be repaired, and none were
accused of abandoning their jobs until Marquez as described below. (Tr. 204–205, 270–
273, 402–405, 413–414, 436–437, 605–607, 612, 657–658, 742, 937–939, and 961;
ALJ Exh. 3(a) at 89–91; ALJ Exh. 4(d) at 296–297.)
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Soon after Campos testified at the representation hearing, Campos required
Reynoso, on orders from Sencion Sr., to remove all of his personal belongings including
any installed radio from his regular OST truck. No spare truck was offered for use by
Campos as he usually did. This had never happened before and the repair turnaround
was usually a day or two or you could drive a spare truck. After a few days and no work,
Reynoso called Campos to check the status of his downed truck and Campos told him
that “attorneys” had not bought the part yet. Reynoso was off work for 10–12 days.
Reynoso believed that repair should have taken 4–6 hours not 10–12 days because all
that was needed was a new part for water pump.
As discussed below, Pizano had the same issue with delayed truck repairs as did
Marquez. Before the May 7 NLRB hearing, a truck in need of repair would be out no
more than a day or so with ample supply of spare trucks. Not so for Reynoso, Pizano,
and Marquez after the May 7 NLRB hearing due to the protest letter. Pizano was forced
to work 1 week on and 1 week off for 6 weeks starting June 2010. Campos would call
Pizano if a driver on another truck was a no show so Pizano could drive in their place.
D. The Discharge of Marquez
On or about August 29, Marquez submitted a written request for time off for the
birth of his son for the period of September 6 to 20. (GC Exh. 5.) Andrade admits that
she received and approved the request. One week into the approved leave, however,
Andrade canceled service to Marquez’ Nextel radio.23 (Tr. 1071.) Andrade also had
Campos sign Marquez’ initial paternity leave request as a “witness.” (Tr. 1066–1069,
1071, 1099.)
When he returned to work on September 20, Campos told Marquez that his truck
was unavailable and in need of repair. Campos presented Marquez the option of
returning to work by using spare truck No. 12 or extending his leave so that Marquez’
regular truck (No. 7) could be repaired.
Marquez chose to extend his leave another week to wait for his usual truck to be
repaired and he submitted another written request to extend his leave through
September 27 when Campos estimated the truck would be repaired. (GC Exh. 6.)
Andrade approved Marquez’ second paternity leave request. Campos agreed to contact
Marquez as soon as his truck was repaired. Because Marquez’ radio contact had been
discontinued, Campos and Marquez agreed to communicate through Marquez’
coworker Pizano as Pizano was driving Marquez’ post-May regular routes and using his
trailer while Marquez was out on leave without his regular truck. (Tr. 93–98, 166–177,
625–626, 1066–1070.)

23 The timing of Respondent’s cancellation of Marquez’ Nextel radio occurred at the same
time Andrade was required to testify at her deposition on September 13 and 14 in the
representation case. (See ALJ Exhs. 4(c) and 4(d).)
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Pizano checked in with Campos daily as to the status of Marquez’ truck repair.
Campos would continuously inform Pizano that Marquez’ truck was not ready and
Pizano relayed this information to Marquez daily. Finally on September 30, Marquez
went to the OST yard to check on his truck and pick up his paycheck from Andrade. At
that time, Campos told Marquez that his truck was still not repaired and he reassured
Marquez that he would contact him as soon as it was ready to use again. Marquez then
asked to use a spare truck that was available in the yard and Campos told him that
fellow mechanic Jose Carillo would soon be repairing that truck. Marquez confirmed this
with Carillo who added that yes he was going to repair the spare truck and that Carillo
“had his orders.” Marquez went home and continued his daily check-in with Pizano as to
the repair status of his truck and Campos continued to say that the truck was not yet
repaired and they could see his truck broken down in the yard. (Tr. 99–110, 122–123,
204–205, 625–626, 640–641, 652, and 657–658. Andrade did not approach Marquez to
inquire when he would return to work before sending the October 15 termination letter
despite her opinion that when trucks were not under repair and sat idle, Respondent lost
money. (See Tr. 1072–1074, 1057.)
Nothing changed for Marquez’ unrepaired truck No. 7 according to Campos until
October 15 when Marquez received a letter from Andrade dated October 14 stating that
he was terminated for job abandonment. (GC Exh. 7.)
E. The Discharge of Pizano
Respondent’s drivers were enrolled by Respondent in a California Department of
Motor Vehicles’ (DMV’s) “pull-notice” program which automatically generates notification
to Respondent when a driver incurs violations. On or about November 1, Andrade
received a DMV pull notice that alerted her to a speeding ticket issued to Pizano. (GC
Exh. 37 at p. 2.) On November 4, Andrade contacted Respondent’s insurance broker,
Christina Bettencourt of Commercial Carriers, and asked her to review Pizano’s driving
record “and write a letter that he [Pizano] is no longer insurable” on OST’s truck
insurance policy. (Tr. 1107–1110; GC Exhs. 37–38.)
On November 8, Commercial Carriers contacted Coastal Brokers, its
underwriting firm and underwriter Cheryl Hartz, to review Pizano’s driving record and
offer advice. Hartz determined that unless Respondent could provide proof that Pizano
was not at fault for an April 25, 2009 accident which appeared on his DMV record,
Pizano was ineligible for continued coverage under Respondent’s Scottsdale Indemnity
policy. Hartz opined that all accidents are deemed to be “at fault” unless proof of non-
fault is received. (Tr. 1005–1025; GC Exhs. 34, 38 & 39.)
Pizano credibly explained that with respect to this April 25, 2009 accident, he
was actually found to be not at fault on May 18, 2009 and was never cited by the
California Highway Patrol (CHP). (Tr. 620; GC Exh. 28.) Soon after the April 2009
accident, Pizano submitted a written explanation of the circumstances surrounding the
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accident to Andrade at Andrade’s insistence and OST policy.24 (Tr. 616–623; GC Exhs.
27 and 28.)
Pizano further recounted that on May 18, 2009, the CHP Traffic Collision Report
(CHP Report) concerning the April 25, 2009 accident was ready for pick-up and he went
to the CHP, picked up the CHP Report, stopped at Z-Best and gave Andrade one copy
of the CHP Report that exonerated Pizano from any citations or liability tied to the
April 25, 2009 accident. (Tr. 620–22; GC Exh. 28.) In addition, Pizano also credibly
noted that not only did he provide Andrade with a copy of the CHP Report but he also
discussed his exoneration, confirmed in the report, to Sencion Sr. later that day who
had earlier expressed to Pizano his opinion that there was an 80–85 percent chance the
accident was Pizano’s fault. (Tr. 620–621.) Instead, Pizano convincingly testified that he
told Sencion Sr. that the CHP Report “shows that I wasn’t at fault” and Sencion Sr.
responded saying only “Okay, looks like they didn’t blame it on you.” (Tr. 621.)
Based on Hartz’ determination, Commercial Carriers sent Andrade an email on
November 8 advising her that Pizano was ineligible for continued coverage unless
Andrade could provide proof of nonfault for Pizano’s involvement in the April 2009
accident. (GC Exhs. 36 and 39.) Before November 19, Bettencourt, OST’s insurance
broker, called Andrade to remind her that she needed to submit the signed driver
exclusion form if she was not going to submit proof of Pizano’s nonfault. During the call,
Andrade demanded that Bettencourt remove any reference in the insurance broker’s
written communications to Andrade which indicated that Pizano could still be eligible for
coverage if proof of nonfault for the April 2009 accident were submitted. When
Bettencourt advised Andrade that Commercial Carriers was obligated to notify her that
she could provide proof of nonfault for continued coverage, Andrade stated that she did
not want to employ Pizano anymore and did not want to give him any opportunity to
provide proof of nonfault for the April 2009 accident. (Tr. 1113–1115.)
On November 19, Andrade presented Pizano with a letter written in English,
stating that Respondent terminated Pizano because he was no longer insurable under
Respondent’s insurance policy. (GC Exh. 29.) At that time, Andrade also asked Pizano
to sign a driver exclusion form which he did. Andrade did not ask Pizano about the April
2009 accident and did not notify him that he might be able to remain eligible for
insurance coverage if he could establish proof of nonfault for the April 2009 accident.
Instead, when Pizano told Andrade that there must be some mistake because his
driver’s license remained valid, Andrade told him that it was not her problem and she
could not help him. (Tr. 612–616.) Andrade said nothing to Pizano about having too
many points and termination until actual date of termination.

24 In fact, Campos confirmed this Respondent policy requiring drivers to submit to the
company a written report if they are involved in an accident or damage a truck. (Tr. 699.)
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III. Discussion and Analysis
A. Credibility
The key aspects of my factual findings above with respect to Respondent’s entity
forms, Sencion Sr.’s true supervisory role with Respondent, the threats and follow
through from the protest letter and Respondent’s drivers’ unionization, and the
discharge of employees Marquez and Pizano 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 testimony from nonunion drivers Vargas and Martines,25 has
been considered but has not been credited.
My credibility resolutions have been informed by my consideration of a witness’
opportunity to be familiar with the subjects covered by the testimony given; established
or admitted facts; the impact of bias on the witness’ testimony; the quality of the witness’
recollection; testimonial consistency; the presence or absence of corroboration; the
strength of rebuttal evidence, if any; the weight of the evidence; and witness demeanor
while testifying. More detailed discussions of specific credibility resolutions appear
herein in those situations that I perceived to be of particular significance.
The facts concerning Respondent’s business prior to 2010, and Sencion Sr.
obvious role as supervisor and hauling route assignor as well as the specific statements
generated from the January 15, April 30, and May 6 meetings attended by Reynoso and
described by him were most convincing. His demeanor at trial was impressive. Reynoso
has worked with Respondent’s principals, Sencion Sr. and Andrade for over 7 years and
was still employed with them at the time of the hearing. Also, prior to signing the protest
letter, he had the seniority and trust to drive the lucrative Watsonville route and he was
clearly in Sencion Sr.’s inner circle as evidenced by his accompanying Sencion Sr. to
buy trucks—a nice break from hauling. Reynoso’s chronology of events and detailed
recollection were quite credible especially when verified numerous times by Marquez,
Pizano, Velasquez, and Salazar. He was especially believable when he explained that
he had no clue why he incorporated except for the insistence of Andrade, Sencion Sr.
and their attorney or face losing his job.
I found key elements of the testimony given by Respondent’s principal witnesses,
Andrade and Sencion Sr., that conflict with the testimony of employee witnesses
unworthy of belief especially when it contradicts their earlier testimony from the
representation hearing or subsequent depositions. In virtually all of the significant
instances, reliable documentary evidence failed to support accounts provided by
Respondent’s key witnesses.

25 Respondent describes nonunion current employees Vargus and Martines as
“uninterested” witnesses. (See R.Br. at 15.) This could not be farther from the truth as both
drivers benefited greatly by Respondent’s questioned behavior with higher compensation taken
from the prounion drivers. (See GC Exh. 46.) I found them both to be heavily biased toward
Respondent and noncredible in their testimony. As a result, except to the extent their testimony
is consistent with reliable witness testimony, I reject Vargus’ and Martines’ testimony as wholly
false.
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I also find Ricardo Lopez from Greenwaste and Cheryl Hartz, Respondent’s truck
insurance underwriter, to be very credible witnesses, because they do not work for
Respondent and have no apparent bias. Lopez was very convincing that Sencion Sr.
controlled the drivers’ route schedules. Hartz was most credible with her explanation
that Pizano did not need to be fired for his driving record in November as Andrade for
Respondent was aware that Pizano’s extra points or percentage against his driving
record was a mistake that could easily be corrected.
Marquez and Pizano were also credible witnesses as they were earnest,
genuine, and their testimonies were reasonable and consistent with the record. In
addition, they appeared serious and respectful of the hearing process. In contrast,
Velasquez, Marciel Salazar Espinosa, Sencion Jr., and Campos either seemed unable
to appreciate the seriousness of the hearing process (Sencion Jr. and Velasquez), or, in
the case of Salazar and Campos, did not care to directly answer questions posed to
them and were very evasive and unbelievable except when consistent with other
drivers’ testimony and when Salazar described events involving his role as a union
organizer and Velasquez recounted his conversation with Sencion Sr. and Sencion Jr.
in late May at the OST yard. I discount the veracity of their testimony when many times
each of these four witnesses would look directly at Respondent’s trial representative
Andrade apparently for guidance or approval before remembering some fact in
response to a question. In addition, Salazar recounted how he begged for his job back
with Respondent in October after he was forced out due to his union support. His
demeanor at trial left me the impression that in return for his job, he must disavow all his
prior union support and help Respondent any way he could thereby sacrificing his own
credibility, if necessary.
Finally, I found Don Dean from Greenwaste and Christina Bettencourt from
Respondent’s insurance brokerage to be less credible and evasive in response to the
General Counsel’s questioning. Dean was not believable that his company does not
have written agreements with its haulers especially given the volume and large amount
of money that changes hands. At the time of hearing, Bettencourt was Respondent’s
sales agent so she did not want to hurt her business relationship with Andrade so I give
her testimony less weight than Hartz.
B. The “Single Employer” Status Issue
Initially, it is necessary to address the issue of whether HCA and OST constitute
a single employer, as contended by Respondent. HCA and OST both were represented
by the same lawyer with Andrade at the hearing. Respondent refused to stipulate to the
single employer status of HCA and OST and argues that the instant complaint would
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require outright dismissal if the two entities are not found to be a single employer.
However, the uncontroverted record establishes that HCA and OST are in essence a
single employer for the reasons that follow.26
Multiple entities may constitute a “single employer” for purposes of the Act.
Parklane Hoisery Co., 203 NLRB 597, 612 (1973), amended on other grounds, 207
NLRB 991 (1973). Where an “arm’s-length relationship” does not exist among the
entities under scrutiny, the Board may find that together they constitute one employer.
See Naperville Ready Mix, Inc. v. NLRB, 242 F.3d 744 (7th Cir. 2001); Blumenfeld
Theaters Circuit, 240 NLRB 206 (1979), enforced without opinion sub nom. Roxie
Oakland Theater v. NLRB, 626 F.2d 865 (9th Cir. 1980) (where relationship resembled
close family rather than independent companies found to be a single employer). The
Board considers four factors to determine whether two or more companies should be
treated as a single employer: (1) interrelation of operations, (2) common management,
(3) centralized control of labor relations, and (4) common ownership or financial control.
Radio & Television Broadcast Technicians Local 1264 v. Broadcast Serv. of Mobile, 380
U.S. 255 (1965) (per curium) (quoted with approval in South Prairie Constr. Co. v.
Operating ’Engineers Local 627, 425 U.S. 800, 802 fn.3 (1976)).27
1. Interrelation of operations
As stated above, Greenwaste and OST have worked together for at least the
past 10 years—Greenwaste paying OST for its drivers to pick up and haul materials
mostly from Greenwaste/Zanker to landfills. HCA was created in 2009, and inserted in
between Greenwaste and OST as a shell entity with no employees. The same business
relationship between Greenwaste and OST continued without any meaningful changes
as Greenwaste views HCA and OST as one and the same. HCA and OST are
completely interrelated in that they are both engaged in the same business of waste
transportation for their only two clients: Greenwaste Recovery and Zanker Road
Landfill. In fact, HCA operates as a shell company, supplying Greenwaste with drivers
by contracting exclusively with OST.28 Through 2011, OST supplies Greenwaste with
its own rate sheet/price list for hauling loads yet since 2009, Greenwaste pays HCA for
hauled loads obtained from OST’s drivers and their submitted weight tickets. HCA does
not own any trucks nor does it have any employees. Andrade signed the contract

26 The Acting Regional Director found that HCA and OST were a single employer in his
decision in the R-case. (C.P Exh 1.) Respondent did not file any exceptions to the Acting
Regional Director’s factual findings in his decision. While I do not rely on the Acting Regional
Director’s decision, I note that Respondent did not offer any new reliable evidence proving that
the Acting Regional Director’s factual findings were incorrect. No convincing arguments or
supplemental reliable evidence have been proffered by Respondent.
27 Contra Dow Chemical Co., 326 NLRB 288 (1998) (common ownership alone insufficient
to establish joint employer status).
28 In fact, HCA and Greenwaste do not even have a written contract and instead operate
under an oral contract. Additionally, although Andrade testified that HCA contracts with
companies other than OST for “construction” her testimony was vague and there was no
evidence to support that assertion. One would expect that Respondent has records as to HCA
contracts in 2010. Thus, it was incumbent for Respondent to proffer such records to show that
HCA is more than a shell corporation who has no employees.
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between HCA and OST for both companies, and controls how much HCA pays OST for
labor.29 Andrade admits that if Greenwaste is having a problem with an OST driver
under Greenwaste’s contract with HCA that Greenwaste has been asked by Andrade to
describe in writing the underlying circumstances of the OST driver problem to Andrade
who with Sencion Sr. will determine whether the OST driver has violated OST rules and
should be terminated for the conduct. (ALJ Exh. 3(a) at 46.) The OST drivers were
required to sign prefilled out incorporation paperwork which Andrade then used and
HCA paid for to incorporate each of the OST drivers. OST and HCA also used the
same mobile trailer office at OST’s yard facility during relevant times, and Andrade
works for both companies and distributes paychecks to OST drivers and controls all
aspects of both entities presently from her home. Similar to the facts in Naperville
Ready Mix, Inc., 329 NLRB 174, 179–180 (1999), without OST, HCA would not be able
to fulfill its contractual obligations with Greenwaste and Zanker Road Landfill, and OST
would not have any work without HCA.30
Significantly, many of the drivers called to testify never heard of HCA and could
only testify that they were employed by “Hilda [Andrade].” Of those who could name a
company that employed them, the drivers named OST. While this is not definitive in
determining whether operations were interrelated, it weighs in favor of showing that
HCA was created merely as a corporate shell acting as a middleman between OST and
the greenwaste/trash companies in order to avoid liability. In fact, Andrade admits that
her role with HCA is that of a broker or middleperson.31 (Tr. 866.) As in Naperville
Ready Mix “[t]he functional integration of these two companies is clear.” Naperville, 329
NLRB at 179.
2. Common management
Respondent admits that HCA and OST share a common management with
Andrade yet cites Cimato Bros. to support its contrary position that there is no common
management between HCA and OST. The Board stated “common management exists
where one of the nominally-separate enterprises exercises actual or active control, as
distinguished from potential control, over the other’s day-to-day operations.” 352 NLRB
797, 799 (2008). In Cimato, the Board found that there was no common management

29 Greenwaste pays HCA and then Andrade determines what share of that money to give to
OST who uses some of the money to pay drivers but also distributes profits back to Andrade as
majority general manager.
30 This is a key distinguishing fact from the Cimato Bros., Inc. case, 352 NLRB 797 (2008),
relied on by Respondent. The two questioned companies in Cimato Bros. were engaged in
entirely different businesses—one was involved in buying, selling, and developing real estate
while the other was involved in the unrelated operations of residential construction. Id. at 800.
31 For example, OST drivers simply hand in their weight tickets to Andrade which reflect the
amounts and weights of materials they haul and she simply turns around and submits to
Greenwaste HCA invoices reflecting the same weight ticket amounts times a profit rate for
Greenwaste to pay to HCA who takes a share of profit off the top, distributes some Greenwaste
funds to OST drivers, pays other OST expenses, and, ultimately, Andrade distributes to herself
and her two children leftover net cash profits as OST’s owners. (Tr. 443–449, 848–849, 855; R
Exh. 13 at 6–8; ALJ Exh 3(a) at 37, 62–63.
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because although one individual was on the board of the company, another individual
actually oversaw the day-to-day operations. Id.
In this case, Andrade oversees and manages operations of both entities and
exercises exclusive authority over the business operations, contractual relationships,
and financial records of the businesses. She admits that she has the same
management duties with OST and HCA. (ALJ Exh. 3(a) at 7–54.) In addition, Andrade is
solely responsible for recordkeeping, payroll, and distributing paychecks.
While Respondent’s witnesses made much ado about the fact that they were
their own corporations and did not have to report to anyone, eventually they conceded
that they did speak with Andrade regarding taking days off and other day-to-day
operations. Moreover, testimony from Respondent’s driver witnesses regarding the fact
that they never spoke with Sencion Sr., is not credible. The drivers testifying for
Respondent were obviously attempting to bolster Respondent’s case and were
hyperbolic as to the amount of control they asserted they had over their work
schedules.32
In contrast, several other drivers credibly testified that Sencion Sr. had control
over driver schedules as well as which drivers were given Saturday shifts. Sencion Sr.
and Andrade have a complicated relationship although Andrade described it only as
they “helped each other.” To the contrary, Sencion Sr. did Andrade’s bidding and
through Sencion Sr., Andrade exercised exclusive authority over the day-to-day
operations of both OST and HCA. Also, as stated above, Andrade admits, and
Greenwaste employee Lopez confirms, that if Greenwaste is having a problem with an
OST driver, Greenwaste has been asked by Andrade to describe in writing the
underlying circumstances of the OST driver problem to Andrade who with Sencion Sr.
will determine whether the OST driver has violated OST rules and should be terminated
for the conduct. (ALJ Exh. 3(a) at 46; see also R Exh. 15.)
Moreover, as discussed below, incorporating each of the OST drivers was
entirely a sham. Andrade testified several times that she manipulated her corporate
entities in order to avoid liability.33 Many of the employees did not understand what
incorporation entailed and only agreed so that they would not lose their jobs. Andrade,
through HCA, paid for each of the employees to become incorporated and attempted to
absolve herself from liability in doing so. Even after incorporation, business continued
as usual and Andrade was in control of day-to-day operations. Therefore, the common
management and/or financial control prong is satisfied by Andrade’s roles in the two
entities.

32 After being questioned as to the number on his radio, which he had possessed for a
number of years, one of Respondent’s witnesses even went so far as to say “I don’t even know
my own phone number.” (Tr. at 904.)
33 For example, Andrade admitted incorporating her businesses in Nevada to avoid liability
when her trucks caused window shield damage to other cars. (Tr. 864.)
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3. Common control of labor relations
Common control of labor relations has been described as a critical factor.34 In
this case, these criteria clearly weigh in favor of a finding that the entities constitute a
single employer, despite the fact that HCA did not have any employees.35 The record
makes clear that Andrade exercised complete control over labor relations at OST.
Andrade communicated with employees regarding layoffs and was responsible for
which employees were terminated. Moreover, she single-handedly sought the advice of
an attorney and unilaterally decided that the employees would have to form
corporations in order to remain employed.36 Although it seems work rules were
somewhat lax, all drivers signed contracts with Andrade and any paperwork in regard to
the terms of their employment came directly from Andrade. Additionally, Andrade sets
the drivers’ wages, insurance, repair of trucks and makes decisions regarding
discharge. Andrade’s presence in handing out paychecks, oversight of operations, and
authority over all financial and operational matters suggests that she controlled labor
relations at OST. Moreover, the drivers, even those who testified that they did not
report to Sencion Sr., admittedly reported to Andrade regarding labor issues, including
time off.
4. Common ownership or financial control
Andrade is the sole owner of HCA, and the controlling general partner/manager
with her two children with Sencion Sr. listed as the other owners of OST. Under Board
case law, this satisfies common ownership. See Naperville Ready Mix, Inc., 329 NLRB
174 (1999) (common ownership satisfied where the same individual had a “significant
ownership interest in the companies in question). Respondent admits so. Andrade
clearly has significant ownership interests in both companies and as such, this prong of
the single employer analysis is satisfied.
Consequently, I conclude that for the reasons stated above, HCA and OST
operate as a single-integrated enterprise to establish them as a single employer. As a
result, HCA is admittedly subject to the Board’s jurisdiction and because I further find
that the two entities are a single employer under Board law, OST, collectively
Respondent, is also subject to the Board’s jurisdiction. See Precision Industries, 320

34 Naperville Ready Mix, 242 F.3d at 744. In Naperville, three companies operated within a
single family, had cross-financing, operated out of the same address and had similar day-to-day
management which was sufficient to satisfy the single employer analysis.
35 See Cimato Bros., 352 NLRB at 799. This factor is given less weight where one of the
companies has no employees. Bolivar-Tees, Inc., 349 NLRB 720, 722 (2007), enfd. 551 F.3d
722 (8th Cir. 2008); Three Sisters Sportswear Co., 312 NLRB 853, 863 (1993), enfd. 55 F.3d
684 (D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996) (where one company has no
employees, factor of centralized control of labor relations becomes less important). Despite the
fact that HCA does not have any employees, it still somehow operates as a corporation and this
does not preclude a finding of single-employer status.
36 In her brief, the GC correctly notes that while Andrade suggested that the drivers were
originally “partners” and were never employees, the drivers were obviously not partners and did
not assist in running the business or profit as partners would.
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NLRB 661, 667 (1996) (finding that when there is a finding of single employer status,
and one entity is subject to the Board’s jurisdiction, all entities part of that single
employer are subject to the Board’s jurisdiction).
C. Supervisory Status of Sencion Sr. and Agent Status for Campos
1. Sencion Sr. is a supervisor of Respondent
While Respondent readily admits and I find that Andrade has been a supervisor
and agent of Respondent at all material times within the meaning of Section 2(11) and
(13) of the Act, respectively, Respondent challenges the supervisor status for Sencion
Sr. and the agent status for Campos.
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 responsibility to direct them, or to adjust their grievances, or
effectively to recommend such action, if such authority is not a merely
routine or clerical nature, but requires the use of independent judgment.
Each of these criteria need not be satisfied for an employee to be classified as
supervisor under Section 2(11).37 However, to be classified as a supervisor the
employee must (1) have authority, (2) to use independent judgment (3) in performing
such supervisory functions, and (4) in the interest of management.38 However, making
routine assignments without the use of independent judgment has been found to be
insufficient to meet the requirements of a statutory supervisor.39
Sencion Sr. fits several of the Act’s enumerated criteria including hiring and
training employees, assigning and directing work, promoting and rewarding employees
and choosing who works on Saturdays. Respondent’s work rules clearly vest Sencion
Sr. with supervisory powers and employees were directed to contact Sencion Sr. for any
problems or complaints they had related to work.40 Moreover, drivers were required to
follow Sencion Sr.’s directions under threat of discipline.

37 National Welders Supply Co., 129 NLRB 514 (1960). Moreover, the Supreme Court has
suggested that an employee may be classified as a supervisor if he meets any one of the 12
criteria. NLRB v. Yeshiva Univ., 444 U.S. 672 (1980).
38 NLRB v. Healthcare & Ret. Corp of Am., 511 U.S. 571 (1994).
39 Stanford Hotel, 344 NLRB 558 (2005).
40 Although Respondent claims that the rules vested Sencion Jr. with this supervisory
power, the drivers who testified understood Sencion Sr. to be the “Oscar” listed in the work
rules. Moreover, it is highly improbable that there was any intent to vest Sencion Jr. with any
authority as he was 15 years old at the time the rules were issued and several witnesses,
including Greenwaste employees testified that they commonly spoke with Sencion Sr. but had
never spoken with Sencion Jr.
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Sencion Sr. conducted preemployment driving tests and was directly responsible
for hiring several of the drivers. Sencion Sr. had the ability to directly impact the earning
capacity of the drivers by assigning them more or less lucrative routes. Moreover,
Sencion Sr. was able to control whether drivers were able to work by deciding whether
or not to allow a driver to use a spare truck when his truck was undergoing repairs.
Although Respondent claims that Sencion Sr. does not have any supervisory
authority over its employees, it is clear that Sencion Sr. is responsible for relaying
orders to the drivers. It is telling that after the May NLRB hearing, Sencion Sr. suddenly
began using Campos to pass on his orders to create the appearance that he had no
authority over the drivers. On the contrary, Sencion Sr. is directly responsible for
designating drivers to their routes. Sencion Sr. is in direct contact with both of OST’s
clients and contacts the drivers using their Nextel walkie talkies and/or cell phones. He
chooses who gets to work on Saturdays and is directly responsible for making sure the
routes are sufficiently covered. Although Sencion Sr. has tried to use mechanics and
Greenwaste employees to relay his messages, it is clear where the message originates
and all efforts to downplay his authority are merely a ruse.
The drivers spend much of their day away from the yard and perform essentially
the same job functions each day and therefore, supervision is somewhat minimal,
however, Sencion Sr. does coordinate with Respondent’s customers and makes work
assignment decisions throughout each workday.
In addition to the primary supervisory status criteria, Sencion Sr. also meets
many of the secondary criteria the Board has developed including employees’
perception that Sencion Sr. is a supervisor as well as his attendance at meetings. Ken-
Crest Services, 335 NLRB 777, 779 (2001). Many of the drivers testified that they
believed Sencion Sr. to be a supervisor and treated him as such. Sencion Sr. attended
all meetings and it was clear from his relationship with Andrade that he was in charge
and had authority over the drivers.
In addition, Sencion Sr. is inextricably linked with management and all of his
actions are in the interest of management. Sencion Sr. is the father of Andrade’s
children, has been Andrade’s business partner for over 10 years, and is a founder of the
business. Both Andrade and Sencion Sr. admitted that Sencion Sr. helps out with the
business because their interests are linked, particularly because of their children.
Sencion Sr. also makes a great deal more than the drivers. Sencion Sr. claims
that he earned at least $160,000 from HCA in 2009 even though in the May 7 hearing
he incredibly claimed to never have heard of HCA. Moreover, it is implausible that
Sencion Sr. earned this money merely for the waste he towed under the guise of
Sencion Trucking seeing as the other drivers made approximately one third of that
amount. Sencion Sr. also admitted earning approximately $1000 per week from OST
for ordering parts, although he denies this was also for his duties of managing the
drivers. Moreover, several drivers and even Sencion Sr.’s son testified that they had
never seen Sencion Sr. drive a truck for hauling.
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Moreover, during his deposition on May 7, Sencion Sr. credibly classified himself
as the yard manager, a supervisor to the drivers and stated that he told the drivers
where they were supposed to pick up their loads and made sure that they were doing
their jobs correctly. In addition, he testified that he was paid by OST for these duties.
Andrade admitted during her deposition on July 7 that Sencion Sr. was a field
supervisor and that he communicated directly with Greenwaste to determine how to
allocate the drivers. (ALJ-3(a) at 56, 245.) However, later at trial Andrade was less than
credible when she completely contradicted herself and claimed that her son, Sencion Jr.
was in fact the supervisor.41
Despite Respondent’s claims that Sencion Sr. did not have any authority over the
drivers, it is clear that he did have actual control and authority over the drivers and that
he directly supervised them. The record is rife with examples of how Sencion Sr.
exerted that control and as such, I find that Sencion Sr. is a supervisor within the
meaning of Section 2(11) because he is clearly vested with authority to hire and train
OST drivers, assign and direct their work, and, along with Andrade, discipline OST
employees.
2. Felipe Campos is an agent of Respondent
Section 2(13) of the Act creates the test for whether an employee is an agent of
the employer:
In determining whether any person is acting as an “agent” of another
person so as to make such other person responsible for his acts, the
question of whether the specific acts performed were actually authorized
or subsequently ratified shall not be controlling.
The Board applies common law principles of agency to determine whether an
individual possesses actual or apparent authority to act for an employer, and the burden
of proving the agency relationship is on the party who asserts its existence. See Pan-
Oston Co., 336 NLRB 305, 305–306 (2001).42 In Zimmerman Plumbing & Heating Co.,

41 At the time the work rules were issued listing Oscar as the supervisor, Andrade’s son,
Sencion Jr. was 15 years old. Moreover, Sencion Jr. incredibly testified that he was issued the
supervisor’s walkie talkie (#15) and that he even brought it with him to high school where he
answered calls from Greenwaste.
42 Contra Ready Mix, Inc., 337 NLRB 1189 (2002) (employee was not an agent where he
was temporarily assigned the duties of a field representative and even though he made
representations that he had authority over the other workers there was no evidence that the
employer conferred such authority on him or “cloaked him with apparent authority to act as its
agent”).
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325 NLRB 106, 106 (1997),43 the Board stated that “it is well established that the
apparent authority results from a manifestation by the principal to a third party that
creates a reasonable basis for that party to believe that the principal has authorized the
alleged agent to perform the acts in question.”44
Moreover, under the common law of agency, a principal may be responsible for
its agent’s actions if the agent reasonably believed from the principal’s manifestations to
the agent that the principal wished the agent to undertake those actions. See
Restatement 2d, Agency, § 33. Id.
Applying these principles here, it is manifestly clear that Campos was the
Respondent’s agent. At no time did Campos act on his own as the OST drivers’
employer. After the representation hearing in May, Sencion Sr. abruptly stopped talking
to his employees to create the appearance that he did not have any supervisory
authority over them and that he was not an agent of OST. Instead, he began using lead
mechanic, Campos, to relay his directions to the employees. Campos began calling
drivers on their radios to assign the work routes. Campos also began relaying
messages about who could take spare trucks while their trucks were being repaired,
directing employees to take their belongings out of their trucks, requiring written
requests for time off, and instructing employees to write up damage and incident
reports. Campos also began communicating whether certain employees were allowed
to work on certain days. Any documentation that Campos received from drivers was
turned over to Andrade and/or Sencion Sr. who would instruct Campos as how to
respond to the drivers. As such, Campos acted as a conduit between the drivers and
management—Sencion Sr. and Andrade. Although Sencion Sr. tried to utilize Campos
to obscure his own authority, in doing so he made Campos an agent of Respondent.
Respondent inserted Campos in place of Sencion Sr. to be Respondent’s agent to
supervise Respondent’s employees and was authorized by Respondent’s management
to act for its benefit. Campos was directed in what to tell the drivers and is an agent of
Respondent within the meaning of Section 2(13) of the Act.

43 In Zimmerman, the Board found both apparent and actual authority where foremen “acted
as the conduits for relaying and enforcing the Respondent’s decisions, directions, policies and
views . . . participated in monthly management meetings . . . were privy to the Respondent’s
policies and objectives . . . [and therefore] it was reasonable for the rank-and-file employees to
believe that these foremen were reflecting company policy and acting for management when
they engaged in the conduct found to be unlawful.” 325 NLRB at 106.
44 See also Waterbed World, 286 NLRB 425, 426–427 (1987) (the test for whether
statements or actions taken by individuals are attributable to the employer is whether the
employees “would reasonably believe that the employee in question [alleged agent] was
reflecting company policy and speaking and acting for management”); Southern Bag Corp., 315
NLRB 725 (1994).
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D. Respondent’s Drivers Are Statutory Employees
“Employees’ are defined by Section 2(3) of the Act:
The term “employee” shall include any employee, and shall not be limited to the
employees of a particular employer, unless the Act explicitly states otherwise,
and shall include any individual whose work has ceased as a consequence of, or
in connection with, any current labor dispute or because of any unfair labor
practice, and who has not obtained any other regular and substantially equivalent
employment, but shall not include any individual employed as an agricultural
laborer, or in the domestic service of any family or person at his home, or any
individual employed by his parent or spouse, or any individual having the status
of an independent contractor, or any individual employed as a supervisor, or any
individual employed by an employer subject to the Railway Labor Act, as
amended from time to time, or by any other person who is not an employer as
herein defined.45
Specifically disputed here are whether the drivers of OST are employees or
independent contractors. The Board applies the common law “right of control” test in
determining whether individuals are employees or independent contractors. National
Freight, 146 NLRB 144, 145–146 (1964).46
Decisions about the status of trucker owner-operators are subjective and each
case must be decided on the basis of its own facts and the Board has specifically
focused on: contracted agreements between the employer and owner-operators,47 and
the practice of the company and owner-operators.48 Moreover, owner-operators have
been found to be employees where the employer exercises “pervasive control over” the
assignment of runs, including the distance, the nature of the load, and to whom delivery
is made; the maintenance of the equipment; the selection of insurance; and the
performance standards of the drivers.49
Here, Respondent certainly exercises pervasive control over the drivers.
Respondent exercises considerable control over the means and manner of its drivers’
performance and does not provide drivers the ability to pursue entrepreneurial
opportunities. The drivers are not owners-operators as they do not even own the trucks
which belong, instead, to OST. Respondent assigns drivers their routes, directly
impacting how much money each driver will make. Respondent communicates via
OST-provided Nextel radios or cellphones directly with its employees and controls

45 See Roadway Package System, Inc., 326 NLRB 842, 848–850 (discussion of the case
law regarding employee vs. independent contractor status).
46 See Kansas City Star Co., 76 NLRB 384 (1948) (finding newspaper employees who
received income from profits rather than wages, had little supervision and set their own working
conditions were independent contractors).
47 See Standard Oil Co., 230 NLRB 967 (1977) (contractual intent to make drivers
independent contractors is relevant but not conclusive).
48 Ace Doran Hauling & Rigging Co., 314 NLRB 798 (1974).
49 Time Auto Transp., Inc., 338 NLRB 626 (2002); Corporate Express Delivery System, 332
NLRB 1522 (2000).
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which drivers go to each site for pick ups and drop offs. Moreover, Respondent is solely
responsible for the insurance, maintenance, fuel costs, tolls, and compliance with
interstate carrier laws for the drivers. The drivers are not allowed to drive their trucks
home without special permission and the drivers cannot use their equipment for
purposes other than hauling for Respondent. This directly inhibits the drivers from
exercising any entrepreneurial control of their own and instead, drivers can only make
those wages that Respondent agrees to pay per load.50 Moreover, the drivers may not
negotiate directly with Greenwaste to determine how much they make per load, but
instead Respondent sets the rate at which they are paid.51 The long work hours at OST
make it impossible for an OST driver to work any other job as work days average from
10 to 12 hours. Given the extent to which Respondent controls the drivers’ equipment
and work hours, the drivers have no way to generate income outside of their
relationship with Respondent.
While some drivers testified that they could make their own schedules and that
there was no direct supervision, those facts are not credible in light of more credible
conflicting testimony and are not controlling in this case. The drivers generally drive the
same routes, unless instructed by Respondent, and therefore do not need much
supervision. However, the drivers come to the yard before the start and after the
completion of their workday and are in constant contact with Respondent via the walkie-
talkies or cell phones as to work routes that arise during each workday. Saturday
routes are determined each preceding Friday evening and assigned by Sencion Sr.
The sham incorporation is also telling, in that it was a ploy by Respondent to
insulate itself from having employees and the many implications the employee-employer
relationship carries. Andrade admitted that it was her idea to incorporate the drivers
after speaking with her lawyer and she and Sencion Sr. told the employees that if they
did not incorporate she would fire them. The drivers were required to sign prefilled out
paperwork which Andrade then used and HCA paid to incorporate each of the drivers.
Many of the drivers were confused by the paperwork and did not understand the terms
written in English they could not read and had no idea of what the requirements of
running a corporation are, and in fact, do not adhere to the requirements. Andrade
began issuing paychecks to the drivers using their corporate names weeks before they
ever agreed to be incorporated. Andrade even treated the drivers as employees until
December 2009, and despite her sham incorporation plan, because there has been no
substantial change in the work that the drivers do, the incorporation does not preclude a
determination that the drivers are statutory employees.
Similar to the facts in Roadway Package System, Inc., 326 NLRB 842 (1998), the
drivers here do not operate their own business, despite being incorporated, but instead
“perform functions that are an essential part of one company’s normal operations.” Id.

50 NLRB v. Friendly Cab Co., 512 F.3d 1090 (9th Cir. 2008).
51 See Standard Oil Co., 230 NLRB 967 (1977).
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at 851. As in Roadway Package System, the facts here tend to show that the drivers
were employees under the Act.52
Respondent cites St. Joseph News Press, 345 NLRB 474 (2005), to support its
contention that the drivers are in fact independent contractors. In St. Joseph, all drivers
signed a contract describing them as independent contractors, some drivers were paid
directly by the customers, carriers provided their own vehicles, managers had rare and
little control over the means in which the carrier executed his job, carriers could, without
notice to the employer, substitute drivers for their route and the carrier created the terms
and conditions of the substitution, carriers could solicit their own business and could
hold other jobs and deliver other products while working for the employer. Here, the
drivers of OST had little freedom to arrive at a flexible hour. However, this was not
coupled with the extensive control that carriers in St. Joseph had and the two cases are
clearly distinguishable.
Moreover, since the sham incorporation the drivers’ duties have remained
unchanged and under common law agency test, the drivers in this case are employees
under the Act.53
E. Independent 8(a)(1) Violations
A statement is an unlawful threat under Section 8(a)(1), when it interferes with,
restrains, or coerces employees in the exercise of their Section 7 rights. 29 U.S.C. Sec.
158(a). The complaint alleges that Respondent violated Section 8(a)(1) of the Act at the
April 30 pizza restaurant employee meeting by Respondent, through its attorney and
interpreter Andrade, telling employees that if they wanted a union, they could have one
with their own self-named corporations in an attempt to dissuade employees from
supporting the Union thereby implying to employees that their support for the Union
would be futile. Respondent contends the April 30 conversation with drivers was too
ambiguous to constitute a threat of futility.
Based on my factual findings set forth above, I find that Andrade did make the
statement during the April 30 meeting to the drivers that if they were thinking about
getting help from a union that it would not be possible because they were going to be
the owners of their own companies through what I find to be Respondent’s sham
incorporation attempt. By April 30, Andrade was aware that the drivers were attempting
to unionize as she had seen notice of an April 22 NLRB representation hearing. There is
no doubt that the drivers’ attempt to unionize is protected concerted activity. Andrade’s
words amounted to a statement violative of the Act that it would be futile for

52 On November 19, the Internal Revenue Service issued a determination letter to OST
finding that OST drivers were employees and not independent contractors for determining
employment tax work status for 2010. (GC Exh. 24.) While I admitted GC Exh. 24 into evidence
but did not take administrative notice of the protest letter, I found it consistent in its application of
tax law and telling that the IRS came to the same conclusion I did under the Act and cases cited
herein.
53 The GC also alleges that Respondent’s mechanics are employees under the Act the
same as its drivers. Because there is no evidence that the drivers and mechanics were
interchangeable as to their job functions, duties, and employer control, I dismiss this allegation.
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Respondent’s employees to engage in future concerted protected activity, which
includes union activities, because they were now incorporated independent contractors
and no longer employees.54
The complaint also alleges that Respondent violated Section 8(a)(1) of the Act
during a May 6 meeting at Respondent’s yard facility when Sencion Sr. and Andrade:
(1) threatened employee Reynoso by stating that employees who supported the Union
would be terminated by the end of May; (2) threatened that Respondent would not
rehire a former employee, Escobar, because of his union support; (3) offered employee
Reynoso improved working conditions of the lucrative Watsonville route if he
abandoned his support of the Union (Tr. 255, 260); and (4) threatened to sell or close
Respondent and hire new owner-drivers because employees signed the protest letter
(Tr. 255-56).55
Cumulatively, these statements are alleged to unlawfully threaten Reynoso 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 benefit.”
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
statement 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.
Based on my factual findings set forth above, I find merit in all of the complaint
allegations concerning the May 6 OST yard meeting. The conversation between
Sencion Sr., Andrade, and Reynoso contained Sencion Sr.’s threat that by joining the
Union, Reynoso and other union drivers will lose their jobs at Respondent. In the
context of Respondent’s other contemporaneous unfair practices, it is clear that the job
terminations would be caused by Respondent’s reaction to the union campaign and the
protest letter. Thus, Sencion Sr.’s statement amounted to an unlawful threat of reprisal

54 See, with regard to futility, employer statement that it would be futile for employees to
select union because they were independent contractors, not employees, violative of Sec.
8(a)(1). Careful Courier Services, 344 NLRB 485, 486 (2005).
55 I find Reynoso’s testimony about statements made to him by Sencion Sr. and Andrade on
May 6 particularly credible given the fact that at the time of trial he remained employed at OST
and is a long-time friend to Sencion Sr. who must continue to face Respondent’s principals after
trial. See S.E. Nichols, Inc., 284 NLRB 556 fn. 2 (1987) (Current respondent employee unlikely
to give false testimony).
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not made on the basis of objective fact.56 It was also unlawful for Sencion Sr. to tell
Reynoso that he would not rehire Escobar because of his union support. Such a
statement clearly amounts to a threat of retaliation for engaging in union activity and
thus constitutes a violation of Section 8(a)(1) of the Act.57 Furthermore, Sencion Sr.’s
promise at the May 6 meeting to increase Reynoso’s benefits by returning him to the
lucrative Watsonville route he had lost through his union involvement and his signing of
the protest letter constitutes interference with the employee’s Section 7 rights. At that
time, Sencion Sr. clearly knew of the union activity and the Board hearing the very next
day, and he was intent on defeating the organizing campaign by improperly influencing
Reynoso with increased benefits in return for him not testifying for the Union on May 7.
This also violates Section 8(a)(1) of the Act. Finally, consistent with my factual findings
set forth above, I further find that Sencion Sr. and Andrade also threatened to sell or
close down Respondent’s business because of the protest letter and unionizing efforts
of Respondent’s drivers. That threat of retaliation was not tied to demonstrably probable
consequences outside of Respondent’s control and therefore violated Section 8(a)(1) of
the Act.58
The complaint also alleges that Sencion Sr. also violated Section 8(a)(1) of the
Act by making the following statements at a late May yard meeting attended by Sencion
Sr., Sencion Jr., and Urias Velasquez: (1) told employee Urias Velasquez that
Respondent would reduce its employees’ hours and pay if they joined the Union;
(2) threatened to close Respondent’s business; and (3) threatened to terminate all of
Respondent’s employees and replace them with owner-operators because of their
support for the Union. (See Tr. 343.) I draw an adverse inference from Respondent’s
unexplained failure to call Sencion Jr. to rebut Velasquez’ testimony. See Douglas
Aircraft Co., 308 NLRB 1217 (1992) (failure to call a witness “who may reasonably be
assumed to be favorably disposed to the party, [supports] an adverse inference . . .
regarding any factual question on which the witness is likely to have knowledge”).
Consistent with my factual findings and legal analysis set forth above, I further find
that Sencion Sr.’s late May statements to Velasquez are violative of Section 8(a)(1) for
the same reasons as explained above and because Sencion Sr. also threatened that
Respondent would reduce its union employees’ hours and pay in retaliation for their
joining the Union in violation of Section 8(a)(1) of the Act.59

56 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).
57 See Lin R Rogers Electrical Contractors, 328 NLRB 1165, 1167 (1999).
58 See NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). No evidence was presented
to show that Sencion Sr.’s or Andrade’s statements constituted a prediction based on probable
consequences beyond Respondent’s control. Instead, the statements were unsupported
predictions aimed at intimidating Reynoso and other drivers in the exercise of their Sec. 7 rights
violative of Sec. 8(a)(1).
59 See President Riverboat Casinos of Missouri, Inc., 329 NLRB 77 fn 5 (1999) (Mere fact
that employer’s remark that wages would go down if the union were voted in violated Sec.
8(a)(1) as a threat which interfered with the employees’ free exercise of Sec. 7 rights.
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Finally, the complaint alleges that Respondent violated Section 8(a)(1) and (3) of
the Act when on or about May 6, it began reducing the work hours and/or the number of
assigned loads of its employees who supported the Union by signing the protest letter
including Primitivo Guzman, Marquez, Enedino Millan, Efrain Gutierrez Najera, Pizano,
Reynoso, Salazar, Urias Velasquez, Jose Urias, and Jose Velasquez.
Consistent with my factual findings set forth above, I further find that Respondent
violated Section 8(a)(1) and (3) of the Act by intentionally reassigning and reducing the
work hours and/or the number of assigned loads of its 10 remaining employees in
retaliation for their support of the Union by signing the protest letter and/or participating
in the NLRB representation hearing. (See GC Exh. 46.)
F. Discriminatory Treatment of Discharged Drivers
Motive-based allegations of discrimination are decided under the framework of
the Board’s Wright Line decision.60 Discharge 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 motivating 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 No. 65 (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).
Generally the General Counsel relies on evidence61 such as the timing of the
employer’s action,62 pretextual motives63, inconsistent treatment of employees,64 and
shifting explanations provided by the employer.65 Flour 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 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
Manufacturing Co., citing Capital Records, Inc., 232 NLRB 228 (1977). See also J. S.
Troup Electric, 344 NLRB 1009 (2005) (Board will infer an unlawful motive if the

60 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
61 See also Association 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 animus); 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).
62 Bay State Ambulance & Hosp. Rental, 280 NLRB 1079 (1986).
63 Abbey Island Park Manor, 267 NLRB 163 (1983).
64 Carpenters Health & Welfare Fund, 327 NLRB 262 (1998).
65 NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263 (7th Cir. 1987).
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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
alleged misconduct,66 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 Electric, 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 Services 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 Medric One, Inc., 331 NLRB 464 (2000).
Once the General Counsel makes a showing of discriminatory 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 employ, but must
show by a preponderance of the evidence that the action would have taken
place even with the protected conduct.
North Carolina License Plate Agency, 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, 271
NLRB 1302 (1984); Limestone Apparel Corp., 225 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. Marquez’ discharge violated Section 8(a)(3) and (1)
The Acting General Counsel asserts that Marquez was terminated for engaging
in union and protected concerted activities and that Respondent’s action violated
Section 8(a)(3) and (1). The Wright Line burden-shifting analysis set forth above is
applicable to Marquez’ termination. Therefore, the Acting General Counsel must
establish that Marquez was engaged in protected conduct, that Respondent knew about

66 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 employee may constitute evidence of discriminatory intent, such
failure will not always constitute evidence of such intent. Hewlett Packard Co., 341 NLRB 492
(2004).
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his protected conduct and that union animus was a motivating factor in Respondent’s
decision to terminate Marquez.
On this record, the Acting General Counsel has met his initial burden of proving
that Respondent fired Marquez because he, along with Salazar, 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. Marquez clearly engaged in protected concerted
activities by signing the union authorization card and the protest letter in April as well as
his testifying at the Board hearing on May 5. (See GC Exhs. 3, 4, and 8.) The protest
letter, in particular, raised protected concerns about wages, work hours, and other terms
and conditions of employment and questioned the propriety of the sham incorporation of
drivers. Moreover, Andrade and Sencion Sr. were aware of that activity on or before
May 6. Andrade admitted that she first became aware that OST’s drivers considered
unionizing when she reviewed the NLRB Petition on April 25 or 27 after returning from a
trip out of the country. (ALJ-3(a) at 263–264.) In addition, on May 5, at the resumed
representation hearing, Marquez submitted the protest letter and his hearing subpoena
to Respondent and later that day, Andrade showed the protest letter to Sencion Sr. in
the yard at OST. (Tr. 68–83; ALJ Exh. 2 (b).) In addition, Andrade testified at her
September 13 deposition, prior to Marquez’ termination, that she knew that Marquez
was one of the employees who decided to call the Union and that she considered him to
be one of the leaders of the group that supported the Union and she repeatedly referred
to Marquez as a complainer and whiner. (ALH Exh. 4(c) at 245, 260–261, 278.67)
Respondent’s animus against the Union is shown as stated above, by Sencion
Sr.’s own motivation by his May statements that all drivers supporting the Union would
be terminated by the end of May for their union support and that resigned driver
Escobar would not get his job back because of his union support. (Tr. 255–260.)
Respondent’s animus against the Union is further shown by the independent 8(a)(1)
violations I have found as described above. Moreover, from May through November,
only the three union supporters who had signed the protest letter, Marquez, Pizano, and
Escobar, were the only ones terminated or forced to resign by Respondent. Finally, as
stated above, when Marquez first left Respondent on approved paternity leave at the
same time Andrade was forced to testify at her deposition in the representation case,
Andrade immediately cut off Marquez’ employer-paid Nextel radio service thereby
disrupting Marquez’ ability to directly communicate with Respondent. I find that this
unexplained cancellation by Andrade of Marquez’ work radio so close in time to her
forced testimony in the earlier Board proceeding is further evidence of Respondent’s
antiunion animus. In these circumstances, the Acting General Counsel has met his
burden of showing improper antiunion animus for the job terminations of Marquez and,
as discussed below, Pizano.

67 At trial before me, Andrade contradicted her earlier deposition testimony which I find to be
noncredible. (Tr. 1103.) As stated above, I found Campos to be almost completely non-credible.
In contrast, I found Marguez to be very genuine and credible. Andrade and Sencion Sr. were
intimidating to many of the drivers, including Marquez and Pizano, who did not speak or read
English very well and they were dependent on Respondent’s principals to treat them fairly being
uneducated not only in the English language but also in legal matters.
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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 No. 218, slip. op. at 3 (2010). I find that, on this record,
Respondent has not overcome that substantial burden and persuasively shown that it
would have fired Marquez absent his union and protected activity.
Respondent contends that Marquez simply refused to return to work after his
paternity leave ended on September 27, his truck No. 7 was not under repair, and the
evidence of animus on the part of Andrade or Sencion Sr. cannot be imputed on
Campos because he is not Respondent’s agent and therefore that the missing evidence
of unlawful motivation on the part of Campos is fatal to the argument that Marquez was
terminated for his union support. First of all, as I found above, Respondent inserted
Campos in place of Sencion Sr. to be Respondent’s agent to supervise Respondent’s
employees and was authorized by Respondent’s management to act for its benefit.
Campos was directed in what to tell the drivers and is an agent of Respondent within
the meaning of Section 2(13) of the Act. As such, Respondent’s principals’ animus is
imputed to Campos as Respondent’s agent. Also, much of Respondent’s defense is
reliant on testimony at trial from Campos and Andrade which I have found to be
contradictory and noncredible. Consequently, I reject Respondent’s noncredible version
of the facts portrayed through Campos and Andrade as they were unreliable witnesses.
After his additional week of paternity leave, Marquez tried to return to work with
Respondent but was told by Campos through Pizano or directly on September 30 that
his regular truck No. 7 was not ready and Marquez was not permitted to use a spare
truck.
Respondent also argues that the noted union activities by Marquez took place
before June and too much time passed from the date he was expected back to work
(September 27) and the date he was actually terminated (October 14) to provide
adequate circumstantial evidence of Andrade’s unlawful motivation to terminate
Marquez for his union activity. This argument ignores the fact that Andrade was forced
to testify in the earlier Board proceeding on September 13 and 14, the same time
Marquez’ Nextel radio was canceled by Andrade while he was out on leave. More
importantly, there is evidence of disparate treatment to Marquez as Reynoso and
Guzman also had lengthy periods of time without work waiting for Andrade to allow
Campos to repair their trucks and they did not lose their jobs due to abandonment.
Marquez went to Respondent on September 30 to retrieve his paycheck and check-in
with Campos on the status of his truck or the use of a spare truck and Respondent put
forth no evidence that Andrade inquired of Marquez whether he had abandoned his job.
An employer’s failure to conduct a meaningful investigation of alleged wrongdoing by an
employee and its failure to give the employee an opportunity to explain are further
indicia of discriminatory intent. See Hewlett Packard Co., 341 NLRB 492 (2004).
Respondent has not shown that it would have terminated Marquez in the absence of his
union support and protected concerted activities including his signing the union
authorization card, the protest letter, and testifying for the Union at the May 5 Board
proceeding.
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2. Pizano’s discharge violated Section 8(a)(1) and (3)
On this record, the same Wright-Line analysis applies to the termination of
Pizano, as the Acting General Counsel asserts that Pizano was also terminated for
engaging in protected concerted activities and that Respondent’s action violated Section
8(a)(3) and (1). Like Marquez, Andrade viewed Pizano as one of the union leaders and
also referred to him as a whiner and complainer. (ALJ Exh. 4(c) at 245, 278.) Pizano
also supported the Union and signed the protest letter raising protected concerns about
wages, work hours, and other terms and conditions of employment and questioning the
propriety of the sham incorporation of drivers. (GC Exh. 4.) Pizano’s protected
concerted activity is protected by the Act. As with Marquez, at the time of Pizano’s
termination on November 18, Respondent knew of Pizano’s protected concerted
activities in support of the Union. As stated above, Pizano already had his hours and
wages decreased and had been removed from the lucrative Watsonville route with
Reynoso and Gutierrez by Respondent in retaliation for his protected concerted
activities. It does not take a leap of faith to tie Pizano’s termination to the same
discriminatory treatment from Respondent that began at the time Respondent’s
principals met with Reynoso on May 6 and described the threats, coercion, and
discrimination that would follow the prounion drivers including Pizano.
As with Marquez, Respondent’s numerous unfair labor practices demonstrate
antiunion animus that was directed towards Pizano to retaliate against him.
Significantly, Respondent, just a month before Pizano’s firing, terminated Marquez for
engaging in protected concerted activity. 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 No. 218, slip. op. at 3
(2010). I find that, on this record, Respondent has not overcome that substantial burden
and persuasively shown that it would have fired Pizano absent his union and protected
activity.
Respondent argues that Pizano was justifiably terminated due to his driving
record point accumulation by November and that Pizano failed to provide Andrade with
a copy of the exonerating CHP report either in May 2009 or November 2010.68 (R Br. at
42.) At trial, however, neither Andrade nor Sencion Sr. denied: (1) having a copy of the
CHP Report proving Pizano’s exoneration for the April 2009 accident in his personnel
file; or (2) Pizano’s testimony that he discussed his nonfault with Sencion Sr. on

68 Contrary to the evasive and noncredible testimony of Andrade and Sencion Sr. in this
proceeding, I observed Pizano to be credible as he was believable and consistent with other
credible witnesses recalling that Salazar was more of the union leader than Marquez or anyone
else and that Pizano’s hours were diminished after the protest letter went to Respondent. Also
Pizano testified consistently with other drivers that Sencion Sr. stopped directly communicating
route assignments to the drivers around early May and, instead, communicated route
assignments through Campos. Pizano also credibly testified, consistent with Respondent’s work
records and other drivers’ testimony that starting in early May, union supporting drivers lost their
Saturday hours as well as the better weekday routes they had always driven. After April, Pizano
and other union-tainted drivers got more routes to the least lucrative Fairfield Potrero Hills dump
(which took much longer to drive) and lost the lucrative Watsonville route that allowed a quicker
turnaround and provided a driver with more loads/more money per day.
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May 18, 2009 after copying the CHP report. (Tr. 620–622.) Instead, Andrade fabricated
facts that ignored more credible testimony. For example, Andrade claimed that she had
submitted Pizano’s written statement regarding the accident to Bettencourt,
Respondent’s insurance broker, when the accident occurred in April 2009, and that she
expected the broker to obtain the police report and to make a determination regarding
whether Pizano was at fault—an impossibility because Bettencourt did not begin to work
with Respondent until December 2009. (Tr. 1107–1109.) Andrade also contradicted an
earlier affidavit where she swore under oath that she did not remember the April 2009
accident, had never seen the written statement from Pizano, and that no one from her
insurance company ever informed her or discussed with her the possibility that Pizano
might be able to remain eligible for coverage if his driving record contained inaccurate
information. (Tr. 1163–1186.)
Finally, Andrade’s not wanting Pizano to remain employed because of his poor
driving record is not believable because she employed numerous drivers with poor
driving records and when insurance companied refused to insure some of them,
Andrade asked that those drivers be covered as “probationary” drivers in order to obtain
coverage for them notwithstanding their poor driving records. (Tr. 1115–1128; GC Exhs.
40, 42, and 43.) Andrade, however, did not want to allow Pizano the opportunity to
provide proof of nonfault for the April 2009 accident and tried to conceal this option to
Pizano as evidenced by her telephone conversation with Respondent’s insurance
broker Bettencourt some time before November 19. In that telephone call, Bettencourt
called Andrade to remind her that she needed to submit the signed driver exclusion
form if she was not going to submit proof of Pizano’s nonfault. During the call, Andrade
demanded that Bettencourt remove any reference in the insurance broker’s written
communications to Andrade which indicated that Pizano could still be eligible for
coverage if proof of nonfault for the April 2009 accident were submitted. When
Bettencourt advised Andrade that Commercial Carriers was obligated to notify her that
she could provide proof of nonfault for continued coverage, Andrade stated that she did
not want to employ Pizano anymore and did not want to give him any opportunity to
provide proof of nonfault for the April 2009 accident. (Tr. 1113–1115.)
It is well settled that evidence of false reasons given in defense and 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
Electric, 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 Services 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 Medric One, Inc., 331 NLRB
464 (2000). Andrade claimed Pizano was terminated because he was no longer eligible
for insurance under Respondent’s policy. (GC Exh. 29.) Instead, Andrade was aware
that Pizano could have remained eligible for coverage with the exonerating CHP report
yet she purposely concealed this from Pizano and also failed to provide the same
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exonerating information to Respondent’s insurance broker. Respondent has not shown
that it would have terminated Pizano in the absence of his union leadership and
protected concerted activity including his signing of the protest letter.
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. By impliedly threatening reprisals for engaging in protected concerted activity,
threatening to terminate employees, threatening to close their business because
their employees engaged in activities on behalf of Teamsters Local Union No.
350, International Brotherhood of Teamsters, Change to Win (the Union), or
other protected concerted activities, such as signing a letter complaining about
working conditions, promising or granting employee benefits, including more
lucrative route assignments, if they abandon their support for the Union, implying
that employees’ support of the Union is futile by telling them that they are not
employees and therefore cannot be represented by a Union, threatening to
reduce or reduce employees’ work assignments and hours if they support the
Union or engage in protected concerted activities, such as signing a letter
complaining about working conditions, the Respondent violated Section 8(a)(1) of
the Act.
4. By reducing employees’ work assignments and hours for supporting the Union
or engaging in protected concerted activities, such as signing a letter complaining
about working conditions, the Respondent violated Section 8(a)(3) and (1) of the
Act.
5. By permanently terminating employees because they support the Union or
engage in protected concerted activities, such as signing a letter complaining
about working conditions, the Respondent violated Section 8(a)(3) and (1) of the
Act.
6. The above violations are unfair labor practices within the meaning of the Act.
7. The Respondent has not otherwise violated the Act.
Remedy
Having found that the Respondent has engaged in certain unfair 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. Having found that Respondent unlawfully terminated Marquez and Pizano, I shall
order it to offer them full and immediate reinstatement to their former jobs, or, if those
jobs no longer exist, to substantially equivalent positions, without prejudice to their
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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. Backpay 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 for the Retarded, 283 NLRB 1173 (1987), and Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
I have found that Respondent unlawfully decreased wages and changed work
routes and hours worked for employees Reynoso, Gutierrez, Marquez, Pizano, Salazar,
Guzman, Gusman, Velasquez, Urias, and Millan beginning on May 6, 2010. I shall order
Respondent to rescind those changes and restore, and make available to these
employees, the same routes, hours, Saturday work, and wages they averaged for the
12 months prior to May 6, 2010 that were available to such employees immediately prior
to its unlawful conduct. In addition, Respondent must make these employees whole by
reimbursing them for any losses resulting from the unlawful conduct, with interest as
prescribed in New Horizons for the Retarded, id.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended.69
ORDER
The Respondent, OS Transport, LLC and HCA Management, Inc., of San Martin,
California, and Las Vegas, Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully threatening to terminate employees;
(b) Unlawfully threatening to close their business because their employees
engaged in activities on behalf of Teamsters Local Union No. 350, International
Brotherhood of Teamsters, Change to Win (the Union), or other protected concerted
activities, such as signing a letter complaining about working conditions;
(c) Unlawfully promising or granting employee benefits, including more
lucrative route assignments, if they abandon their support for the Union;
(d) Unlawfully implying that employees’ support of the Union is futile by telling
them that they are not employees and therefore cannot be represented by a Union;
(e) Unlawfully threatening to reduce or reduce employees’ work assignments
and hours if they support the Union or engage in protected concerted activities, such as
signing a letter complaining about working conditions;

69 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(f) Unlawfully terminating employees because they support the Union or
engage in protected concerted activities, such as signing a letter complaining about
working conditions;
(g) Unlawfully in any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed to them by Section 7 of
the National Labor Relations Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Make employees Reynoso, Gutierrez, Marquez, Pizano, Salazar,
Guzman, Gusman, Velasquez, Urias, and Millan whole, with interest, for their reduction
of work and hours.
(b) Within 14 days from the date of this order, offer employees Marquez and
Pizano immediate and full reinstatement to their former jobs, or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(c) Make employees Marquez and Pizano whole, with interest, for any loss of
earnings and other benefits suffered as a result of the unlawful discrimination against
them, in the manner set forth in the remedy section of this decision.
(d) Within 14 days from the date of this order, remove from its files any
reference to the unlawful actions taken against Marquez and Pizano and, within 3 days
thereafter, notify them in writing that this has been done and that the unlawful actions
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
designated by the 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.
(f) Within 14 days from the date of this order, post at its San Martin,
California yard, copies of the attached notice marked “Appendix.”70 Copies of the notice,
on forms provided by the Regional Director for Region 32, 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. 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 distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other

70 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.”
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electronic means, if the Respondent customarily communicates with its employees by
such means. 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 April 2010.
(g) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
(h) Within 14 days of the date of this order, the Respondent will hold a
meeting or meetings, scheduled to ensure the widest possible attendance, at which the
attached notice will be publicly read by the responsible corporate executive, Hilda C.
Andrade, in both English and Spanish, in the presence of a Board agent, or at
Respondent’s option, by a Board agent in Andrade’s presence. This remedy is
appropriate here because the Respondent’s violations of the Act are sufficiently serious
and widespread that reading of the notice will be necessary to enable employees to
exercise their Section 7 rights free of coercion. See Homer D. Bronson Co., 349 NLRB
512, 515–516 (2007), enfd. mem. 273 Fed.Appx. 32 (2d Cir. 2008).
(i) The Respondent shall provide the Union, upon request within 1 year of
issuance of this decision, a list of employees’ names and addresses.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., August 15, 2011.
Gerald M. Etchingham
Administrative Law Judge
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:
ï‚· Form, join, or assist a union
ï‚· Choose representatives to bargain with us on your behalf
ï‚· Act together with other employees for your benefit and protection
ï‚· Choose not to engage in any of these protected activities
WE WILL NOT threaten to terminate our employees or threaten to close our
business because our employees engaged in activities on behalf of Teamsters Local
Union No. 350, International Brotherhood of Teamsters, Change to Win (the Union), or
other protected concerted activities, such as signing a letter complaining about working
conditions.
WE WILL NOT promise or grant employee benefits, including more lucrative
route assignments, if they abandon their support for the Union.
WE WILL NOT imply that employees’ support of the Union is futile by telling them
that they are not employees and therefore cannot be represented by a Union.
WE WILL NOT threaten to reduce or reduce employees’ work assignments and
hours if they support the Union or engage in protected concerted activities, such as
signing a letter complaining about working conditions.
WE WILL NOT terminate employees because they support the Union or engage
in protected concerted activities, such as signing a letter complaining about working
conditions.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL rescind the termination of Alberto Pizano and James Garcia Marquez
and expunge any reference to their termination from all our files and records, and WE
WILL inform Alberto Pizano and Jesus Garcia Marquez in writing that these disciplinary
actions will not be cited or used against them in any way in the future.
WE WILL reinstate Alberto Pizano and Jesus Garcia Marquez to their former
positions without prejudice to their seniority or any other rights or privileges previously
enjoyed, and WE WILL make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them.
OS Transport, LLC.
(Employer)
Dated By
(Hilda C. Andrade) (Manager)
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
Charging Party representation and it investigates and remedies unfair labor practices by employers and
Charging Parties. 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.
1301 Clay Street, Suite 300N
Oakland, California 94612-5224
Hours: 8:15 a.m. to 4:45 p.m.
510-637-3300.
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, 510-637-3300.