Post Tension of Nevada, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1153 (N.L.R.B. 2008)

POST TENSION OF NEVADA, INC.
352 NLRB No. 131
1153
Post Tension of Nevada, Inc. and District Council of
Iron Workers of the State of California and Vi-
cinity. Case-28–CA–21579
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 18, 2008, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions and a supporting brief and the General Coun-
sel and the Charging Party filed cross-exceptions and
supporting briefs. The General Counsel and the Respon-
dent filed answering briefs and reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We agree with the judge that the Respondent violated Sec. 8(a)(1) by
prohibiting its employees from going to a nearby Chevron station
where they typically stopped at the start of their workday to purchase
food, socialize, and discuss work issues. This prohibition was an-
nounced only after the Respondent learned that employees were meet-
ing with union representative Brady Bratcher at the Chevron station.
As the judge found, this prohibition was overly broad and discrimina-
tory. The judge, however, failed to address the General Counsel’s
allegation that the rule also prohibited the employees from assembling.
In additionally finding this violation, we rely on the fact that the Chev-
ron station was a central location for employees of the different crews
to gather and discuss working conditions and organizing. Thus, the
prohibition against going to the Chevron station reasonably tended to
impede and discourage employee concerted activity.
In adopting the judge’s dismissal of the allegation that the Respon-
dent violated Sec. 8(a)(3) and (1) by discharging striking employees,
we disavow any implication in the judge’s decision that the violation
turns on whether the Respondent intended to discharge the strikers.
Rather, the test is whether “the words or action of the employer ‘would
logically lead a prudent person to believe his [her] tenure has been
terminated.’” North American Dismantling Corp., 331 NLRB 1557
(2000) (quoting NLRB v. Trumbull Asphalt Co., 327 F.2d 841, 843 (8th
Cir. 1964)), enfd. in relevant part and remanded 35 Fed. Appx. 132 (6th
Cir. 2002). The relevant events must be viewed from the employees’
perspective. Id., fn. 4. Applying this test, we agree with the judge that
the General Counsel failed to prove that the Respondent discharged the
striking employees.
In adopting this dismissal, Chairman Schaumber additionally relies
on Nations Rent, Inc., 342 NLRB 179 (2004).
In adopting the judge’s dismissal of the allegation that the Respon-
dent violated Sec. 8(a)(3) and (1) by prohibiting employees from cash-
ing their paychecks at the Chevron station, Member Liebman does not
rely on the judge’s discussion of Success Village Apartments, Inc., 350
NLRB 908 (2007), in which she dissented. Member Liebman adopts
AMENDED REMEDY
Having found that the Respondent unlawfully failed
and refused to reinstate 15 unfair labor practice strikers
on September 26, 2007, we shall order the Respondent to
offer those employees immediate and full reinstatement
to their former positions (to the extent it has not already
done so), or, if the positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or other rights or privileges, discharging, if neces-
sary, any replacements hired after the start of the strike.
Any employee for whom employment is not immediately
available shall be placed on a preferential hiring list for
employment as positions become available, and before
other persons are hired for such work, with placement on
the list determined by seniority or some other nondis-
criminatory standard. RGC (USA) Mineral Sands, Inc.,
332 NLRB 1633, 1645 (2001), enfd. 281 F.3d 442 (4th
Cir. 2002).3 The Respondent shall also make employees

the judge’s dismissal of this allegation based on the judge’s factual
determination that the Respondent never implemented such a prohibi-
tion.
In adopting the judge’s dismissal of the allegation that the Respon-
dent violated Sec. 8(a)(3) and (1) by failing to consider for employment
applicant Brady Bratcher, we do not pass on the judge’s finding that the
General Counsel failed to meet his initial burden under FES, 331
NLRB 9, 10 (2000), supplemented 333 NLRB 66 (2001), enfd. 301
F.3d 83 (3d Cir. 2002). Even assuming arguendo that the General
Counsel met his initial burden, we agree with the judge that the Re-
spondent met its rebuttal burden by showing that it would not have
considered Bratcher for employment even in the absence of his union
activity or affiliation.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
We shall modify the judge’s recommended Order to conform more
closely to the findings herein. We shall also substitute a new notice in
accordance with the Order as modified and in accordance with our
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001),
enfd. 354 F.3d 534 (6th Cir. 2004).
We have also modified the judge’s recommended Order to require
that the notice to employees be posted in Spanish as well as English. In
light of this determination, we deny as moot the Charging Party’s Re-
quest that the Board take Administrative Notice of Spanish language
notices in two prior cases.
In their cross-exceptions and supporting briefs, the General Counsel
and Charging Party seek compound interest computed on a quarterly
basis for any backpay awarded. Having duly considered the matter, we
are not prepared at this time to deviate from our current practice of
assessing simple interest. See, e.g., Rogers Corp., 344 NLRB 504
(2005).
3 We shall amend the judge’s recommended remedy to conform to
the standard remedy for the reinstatement of unfair labor practice strik-
ers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1154
whole for any loss of earnings and other benefits sus-
tained by them as a result of the Respondent’s unlawful
discrimination against them. Those amounts shall be
computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Post Tension of Nevada, Inc., Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate unfair labor practice striking
employees who made unconditional offers to return to
their former or substantially equivalent positions of em-
ployment.
(b) Promulgating and maintaining overly broad and
discriminatory work rules designed to prohibit employ-
ees from meeting with union representatives and from
assembling for such purposes at local retail establish-
ments.
(c) Threatening employees with discharge if they en-
gage in a strike.
(d) Informing employees it will not issue paychecks
on Friday mornings in order to interfere with employees’
protected union activity of meeting with a union repre-
sentative.
(e) Refusing to give any person an employment appli-
cation because of the person’s union affiliation.
(f) In any like or related matter interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
(2) Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, insofar
as it has not already done so, offer the employees named
below, immediate and full reinstatement to their former
positions, or, if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to their
seniority or other rights or privileges.
Agustin Cuevas Ayala Crecensio Montoya Ramirez
Leobardo Delgado Jesus Prudenciado-Orenday
Alfonso Arca Salazar Aureliano Zazueta-Rivera
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio Quiroz Sanchez Leonidas Ruiz-Quiroz
Teodoro Flores Sanchez Damion Garcia

In Oil Capitol Sheet Metal, 349 NLRB 1348 (2007), the Board ad-
dressed the burdens applicable to compliance proceedings involving
union “salts.” There is no contention or evidence that the unfair labor
practice strikers in this case were salts. Accordingly, we disavow the
judge’s statement, at fn. 34 of her decision, that reinstatement of the
unfair labor practice strikers is subject to defeasance if the General
Counsel fails to meet his burden of proof under Oil Capitol.
Salvador Quiroz Merino Felix Quiros
Jesús Martinez
(b) Make the employees described in paragraph 2(a)
above whole 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 amended remedy sec-
tion of the Board’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to reinstate the employee 3 days thereafter notify them in
writing that this has been done and that the refusal to
reinstate them will not be used against them in any way.
(d) Rescind its prohibition against its employees meet-
ing at a nearby Chevron station on their way to their
worksite, and notify its employees in writing that it has
done so.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of back pay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its office in Phoenix, Nevada, copies in English and
Spanish of the attached notice marked “Appendix.”4
Copies of the notice, on forms provided by the Regional
Director for Region 28 after being signed by Respon-
dent’s authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out
of business or closed the operations involved in these
proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by Respondent at
any time since September 1, 2007.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
POST TENSION OF NEVADA, INC. 1155
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT refuse to reinstate employees who en-
gage in an unfair labor practice strike and who make un-
conditional offers to return to their former or substan-
tially equivalent positions of employment.
WE WILL NOT make and announce work rules in order
to prohibit employees from meeting with the District
Council of Iron Workers of the State of California and
Vicinity (the Union) or with any other union representa-
tive, and from assembling.
WE WILL NOT threaten employees with discharge if
they engage in a strike.
WE WILL NOT tell employees we will not issue pay-
checks on Friday mornings in order to interfere with em-
ployees meeting with representatives of the Union or
with any other union representative.
WE WILL NOT refuse to give any person an employ-
ment application because of the person’s union affilia-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL offer the employees named below, immediate
and full reinstatement to their former positions, or, if
those positions no longer exist, to substantially equiva-
lent positions without prejudice to their seniority or any
other rights or privileges previously enjoyed:
Agustin Cuevas Ayala Crecensio Montoya Ramirez
Leobardo Delgado Jesus Prudenciado-Orenday
Alfonso Arca Salazar Aureliano Zazueta-Rivera
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio Quiroz Sanchez Leonidas Ruiz-Quiroz
Teodoro Flores Sanchez Damion Garcia
Salvador Quiroz Merino Felix Quiros
Jesús Martinez
WE WILL make the employees named above whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful discrimination against them, with
interest.
WE WILL remove from our files any reference to the
unlawful refusals to reinstate the employees named
above and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the refusals to
reinstate will not be used against them in any way.
WE WILL rescind our prohibition against our employ-
ees meeting at a nearby Chevron station on their way to
their worksite, and we will notify our employees in writ-
ing that we have done so.
POST TENSION OF NEVADA, INC.
Chris J. Doyle,Esq., for the General Counsel.
James T. Winkler (Littler Mendelson, PC), of Las Vegas, Ne-
vada, for the Respondent.
Brady Bratcher (District Council of Iron Workers of the State
of California and Vicinity, AFL–CIO), of Pinole, California
for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Phoenix, Arizona, on February 12 through 14 and 27,
2008,1 upon complaint and notice of hearing (the complaint)
issued November 30, 2007, by the Regional Director of Region
28 of the National Labor Relations Board (the Board) based
upon charges filed by District Council of Iron Workers of the
State of California and Vicinity (the Union). The complaint
alleges Post Tension of Nevada, Inc. (the Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act).2 Respondent essentially denied all allegations of unlaw-
ful conduct.
II. ISSUES
1. Did the Respondent engage in the following violations of
Section 8(a)(1) of the Act: engage in surveillance of employees
engaged in union and other concerted activities; orally promul-
gate and maintain overly broad and discriminatory rules that
prohibit employees from talking to union representatives, that
prohibit employees from assembling at a facility where they
engage in concerted activities, and that prohibit employees
from cashing checks at a facility close to the Respondent’s
facility; threaten employees with discharge if they engage in a
strike.
2. Did the Respondent violate Section 8(a)(3) and (1) of the
Act in the first week of September by imposing more onerous
terms and conditions of employment by prohibiting its employ-

1 All dates herein are 2007 unless otherwise specified.
2 At the hearing, Counsel for the General Counsel amended the
complaint to correct jurisdictional allegations in par. 2(b). Respondent
admitted the amended allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1156
ees from cashing checks at a facility close to the Respondent’s
facility.
3. Did unfair labor practices committed by the Respondent
cause or prolong the strike engaged in by certain employees of
the Respondent on September 20?
4. Did the Respondent violate Section 8(a)(3) and (1) of the
Act on September 20, by discharging employees David Amaya-
Ruiz, Alfonzo Arce-Salazar, Agustin Cuevas-Ayala, Leobardo
Delgado, Teodoro Flores-Sanchez, Damian Garcia, Jesus Mar-
tinez, Crecencio Montoya-Ramirez, Jesus Prudenciano-
Orenday, Felix Quiros, Salvador Quiroz-Merino, Gregorio
Quiroz-Sanchez, Leonides Ruiz-Quiroz, Eduardo Velasco-
Hernandez, and Aureliano Zazueta-Rivera.
5. Has the Respondent, since September 26, violated Section
8(a)(3) and (1) of the Act by failing and refusing to reinstate the
employees named in paragraph 4 above to their former or sub-
stantially equivalent positions of employment following their
unconditional offers to return to those positions.
6. Did the Respondent violate Section 8(a)(3) and (1) of the
Act by refusing to consider applicant Brady Bratcher for em-
ployment.
III. JURISDICTION
At all relevant times, the Respondent, a Nevada corporation,
has been engaged in the business of installing stress cables used
in the construction industry with an office and place of business
in Phoenix, Arizona (the Respondent’s Phoenix facility). Dur-
ing the 12-month period ending September 20, the Respondent
purchased and received at its facility goods valued in excess of
$50,000, directly from points located outside the state of Ari-
zona. I find Respondent has at all relevant times been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent admits, and I find, the
Union has at all relevant times been a labor organization within
the meaning of Section 2(5) of the Act.
IV. FINDINGS OF FACT
A. The Respondent’s Business
The Respondent operates its construction-industry business
out of facilities located in Denver, Colorado, Henderson, Ne-
vada and, Tucson and Phoenix, Arizona. This case concerns
the Respondent’s facility in Phoenix, Arizona (the Phoenix
facility). John Hohman, based in Tucson, manages the Arizona
facilities, visiting the Phoenix facility several times a week.
During the period relevant to this matter, the following indi-
viduals held the following positions with the Respondent at the
Phoenix facility and were supervisors and agents of the Re-
spondent within the respective meanings of Section 2(11) and
(13) of the Act:
John Hohman (Hohman) Vice-President
Matt Pickens (Pickens) Superintendent
Javier Loya Bando (Loya) Assistant Superintendent
Ken Saffin (Saffin) Manager
In 2007, the following seven employees, stipulated supervi-
sors within the meaning of Section 2(11) of the Act, served as
the Respondent’s field foreman:
Roberto Arce-Salazar (Foreman Salazar)
Jesus Guerrerro (Foreman Guerrerro)
Ezequiel Ordonez (Foreman Ordonez)
Juan Quintero (Foreman Quintero)
Juan Delgado (Foreman Delgado)
Rosalio Gastelum (Foreman Gastelum)
Jaime Fernandez (Foreman Fernandez)
At all relevant times, the Respondent’s construction projects
in Phoenix were carried out by field crews, each consisting of a
foreman and a varying number of laborers. For several years
prior to September 20, the Respondent’s workday practice in
Phoenix was for the field crews to report to the Phoenix facil-
ity, receive their work assignments, and depart for their speci-
fied work sites. Each crew was transported by its respective
foreman in the foreman’s personal vehicle. Enroute to the work
site, most crews typically stopped at a nearby Chevron gas
station/mini market (Chevron station) where the crew foremen
fueled their vehicles while crew members purchased food and
socialized, spending from 20 to 30 minutes there.
The Respondent paid its field employees an hourly rate plus
a production bonus, normally issuing paychecks to the field
employees each Friday morning.3 Having established check-
cashing privileges at the Chevron station, many crew members
cashed paychecks there on payday mornings.
B. Union Organizational Activity among the Respondent’s
Field Employees
In 2005 Brady Bratcher (Bratcher), organizer for the Union,
unsuccessfully sought an 8(f) agreement with the Respondent.
That same year, he coordinated a brief economic strike against
the Respondent by its field employees, resulting in a meeting
among company representatives and workers to resolve certain
work issues.
In early 2007 with the intention of organizing the Respon-
dent’s employees, Bratcher began visiting the Chevron station
where he knew many employees gathered before dispersing in
crews to individual worksites. A number of employees ex-
pressed to Bratcher dissatisfaction with the Respondent’s fail-
ure to implement its 2005 poststrike promises, and Bratcher
increased his meetings with them during mid-summer.4 The
Respondent knew Bratcher visited with employees at the Chev-
ron station. On one occasion, as Bratcher met with employees
there, he gave Loya, whom he knew from the 2005 strike, a
business card, asking him to help the workers if he could.
In early August, Bratcher approached Mr. Saffin at the Re-
spondent’s Phoenix facility with the hope of securing an 8(f)
agreement with the company. Mr. Saffin declined to talk to
him, saying that in 2005 when Bratcher didn’t get what he
wanted he, “went behind [the company’s] back.”

3 Employee paychecks, which were generated in Henderson, Ne-
vada, sometimes did not arrive at the Phoenix facility until late after-
noon Thursday or on Friday. When that happened, Pickens delivered
them to employees on the jobsites. Deviation from Friday morning
paycheck issuance appears to have been atypical and infrequent.
4 In addition to meeting with employees during workday mornings at
the Chevron station, Bratcher met with them at an office building of the
Building Trades Organizing Project (BTOP).
POST TENSION OF NEVADA, INC. 1157
C. The Respondent’s August 24 Meeting with
Field Foremen
On August 24, Pickens held a meeting with the Respondent’s
seven field foremen at which Loya and Juan Carlos-Acosta
translated.5 At the meeting, Pickens distributed and discussed
written instructions entitled “Tips for Management” setting
forth rules for management conduct during union organizing
campaigns. The handout categorized prohibited conduct by the
acronym TIPS: Threats, Intimidation, Promises, and Spying.
Foreman Salazar testified that Pickens told the foremen they
were not to talk to Bratcher or to take employees to talk to
him.6 Foreman Salazar quoted Pickens, as saying:
I don’t want you guys to go to the Chevron at all there, and to
bring the laborers. In fact, I just don’t want you to go to that
Chevron gas station at all. Instead of going and gassing up in
the morning, I would want you to go and gas up in the after-
noon, so that in the morning, you don’t have to go to the gas
station at all. Just go straight away and go to work.
Foreman Ordonez essentially corroborated Foreman Sala-
zar’s testimony and further recalled that Pickens said the Re-
spondent would no longer distribute paychecks in the morning
in order to discourage crews from going to the Chevron station
because Bratcher was there.
Pickens denied telling the foremen that they were not to go
to Chevron station or threatening to impede their check-cashing
there, and he denied telling the foremen to tell their crews they
could not talk to Bratcher or go to the Chevron station or cash
their checks there. According to Pickens, he told the foremen
not to have any contact with union representatives, as they were
members of company management, and not to threaten, intimi-
date, promise, or spy on their laborers. By Pickens’ account,
when the foremen said it was difficult to avoid Bratcher, as he
was regularly at the Chevron station, Pickens suggested they
not go there.
Loya testified Pickens told the foremen at the August 24
meeting that while they were not to have any contact with un-
ion representatives, it did not matter if the laborers did.
Following the meeting, Foremen Salazar and Ordonez told
their crews Pickens had forbade them to take the laborers to the
Chevron station because he did not want them talking to
Bratcher. The workers complained about Pickens’ interdiction,
as it interfered with their ability to buy food and drink for the

5 There is some question as to whether Loya fully translated what
Pickens said. Foreman Salazar testified that Loya rendered lengthy
utterances by Pickens into brief translations; Foreman Ordonez testified
that Loya does not speak or read English very well. However, Loya is
an admitted supervisor, and while his statements may not have pre-
cisely reflected those of Pickens, the Respondent is answerable for
what. Loya said. See 3E Co., Inc., 313 NLRB 12 fn. 1 (1993). I find it
unnecessary, even if it were possible, to distinguish between Pickens
and Loya’s statements. Moreover, Foremen Salazar and Ordonez who
are at least conversant in English have testified to what Pickens said.
6 Initially, Salazar testified that Pickens said the foremen were not to
“take people to talk to [Bratcher].” In response to questioning by
Bratcher, Foreman Salazar clarified that Pickens had told the foremen
not to “take any of our laborers to where they could meet up or talk
with Brady [Bratcher] or any union representative.”
work day and, according to laborer Damion Garcia, they did
not like being prohibited from speaking to whomever they
wished. The employees discussed the possibility of striking.
Having considered all testimony regarding the August 24
meeting, I credit Foremen Salazar and Ordonez’s accounts of
the meeting and the laborers’ accounts of what their foremen
told them of it.7 The foremen and laborer witnesses essentially
corroborated each other and were otherwise believable.8 On
the other hand, I cannot find Loya to have reliably corroborated
Pickens’ version of the meeting. Loya’s testimony was incon-
gruously abbreviated, and he was so uneasy and muted in testi-
fying as to prevent dependence on his account.
Thereafter, Foreman Salazar continued to take his crew to
the Chevron station as before,9 but Foreman Ordonez only oc-
casionally stopped there enroute to his crew’s work sites. On
one or two occasions after the August 24 meeting, the Respon-
dent handed out paychecks on Friday afternoons rather than
mornings. According to Foreman Ordonez, on those occasions,
Pickens said he was delaying the checks because he did not
want to see the crews at the Chevron.
D. Alleged Surveillance at the Chevron Station
Early in the morning of August 29, Bratcher spoke with
Foreman Guerrerro and his crew at the Chevron station while
Guerrerro fueled his vehicle. As they talked, Pickens appeared
at the Chevron station and told Guerrero that he needed to get
to work.10
On August 31, Bratcher again went to the Chevron station,
finding Foremen Salazar, Ordonez, Guerrerro, and Gastelum
and their crews there. While Bratcher visited with Foreman
Guerrerro and his crew, Pickens appeared. Three witnesses
testified they saw what they believed to be Pickens taking a
photograph of Bratcher as he talked to Foreman Guerrerro and
his crew: (1) Bratcher testified that as he talked to the Guer-

7 The foremen’s statements to the laborers are the admissions of ad-
mitted supervisors against a party-opponent and thus not hearsay under
Rule 801(d)(2) of the Federal Rules of Evidence. See U.S. Ecology
Corp., 331 NLRB 223, 225 (2000). I have considered the fact that the
foremen were allied with the laborers in their dispute with management
as a reflection on their credibility, but the immediacy of the foremen’s
recounting of the meeting along with lack of motivation to misinform
the laborers provide adequate circumstantial guarantees of reliability.
8 The foremen’s statements to the laborers are the admissions of ad-
mitted supervisors against a party-opponent and thus not hearsay under
Rule 801(d)(2) of the Federal Rules of Evidence. See U.S. Ecology
Corp., 331 NLRB 223, 225 (2000). I have considered the fact that the
foremen were allied with the laborers in their dispute with management
as a reflection on their credibility, but the immediacy of the foremen’s
recounting of the meeting along with lack of motivation to misinform
the laborers provide adequate circumstantial guarantees of reliability.
9 Although there were a couple of occasions when Foreman Salazar
did not take his crew to the Chevron station after the August 24 meet-
ing, those deviations coincided with assignments to sites that took him
and his crew on routes inconvenient to the Chevron station.
10 It was the first time Bratcher had seen Pickens at the Chevron sta-
tion. Several employees also testified they had never seen Pickens
there before Bratcher began meeting with them. The Chevron station
was locally noted for its spicy burritos and was convenient to the Re-
spondent’s facility. Both Hohman and Pickens credibly testified that
they regularly purchased food items at the Chevron station.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1158
rerro crew, he saw Pickens in front of or on the passenger side
of his truck point a little camera toward them, and he saw a
photographic flash; (2) Agustin Cuevas Ayala (employee
Cuevas Ayala), a laborer on Foreman Salazar’s crew, testified
he saw Pickens, in a photograph-taking posture, point his cell
phone at Foreman Guerrerro who was talking with Bratcher but
saw no flash; (3) Damion Garcia testified he saw Pickens
seated behind his steering wheel pointing a cell phone toward
Bratcher, as Bratcher talked with Foreman Guerrero and sur-
rounding laborers. Pickens denied ever taking a picture of any
employees at the Chevron station and posited that he may have
been seen text messaging while there. I credit Pickens’ denial.
Testimony regarding Pickens’ alleged photographing of em-
ployees was inconsistent, and there is no clear evidence Pick-
ens’ action on which the testimony was based was not cell
phone use unrelated to employees’ union activity.11
E. The September 20 Strike and September 26
Unconditional Offer to Return to Work
Upon reporting to work the morning of Thursday, September
20, Foreman Salazar told some of the laborers that Loya had
announced they would not receive their paychecks until Friday
afternoon because the Respondent did not want them to go to
the Chevron to cash them and see Bratcher. The employees
asked for a meeting with Pickens. Pickens refused to meet with
the laborers, but with Loya translating, Pickens met in his of-
fice with five of the field foremen, Salazar, Ordonez, Delgado,
Guerrero, and Fernandez, for about an hour and a half. During
the meeting, the foremen requested a written explanation of the
company’s pay system for field employees, which Pickens said
he could not immediately supply. They also asked the com-
pany to provide water and ice machines and reimburse them for
their hand tools. Pickens said he would discuss their requests
with the company owners. Agreeing to meet with them again
after work, Pickens prevailed upon them to leave for their job
sites in order to meet deadlines for scheduled construction in-
spections.
The five foremen left Pickens’ office, but only Foreman
Guerrero went to work with his crew. The remaining foremen
met with their crews, and Foreman Salazar told the laborers that
Pickens had said he would not turn over the checks until Friday
afternoon so that the workers would not “hook up” with
Bratcher at the Chevron station.12 While the laborers were still
talking with their foremen, Pickens came outside. Foremen
Salazar, Ordonez, Delgado, and Fernandez informed Pickens
that they were not going to work. With Loya translating, Pick-

11 I recognize that I have earlier declined to credit Pickens’ testi-
mony as to another issue. The Board has long held that failure to credit
part of a witness’ testimony does not preclude crediting other parts of
his testimony. Service Employees Local 1877 (American Building
Maintenance), 345 NLRB 161 fn 3 (2005).
12 The substance of Foreman Salazar’s report to the laborers is based
on the testimony of employee Cuevas-Ayala whom I found to be a
candid and reliable witness. Ayala’s testimony was, in part, corrobo-
rated by Damion Garcia whom I also found credible; Garcia testified
that Pickens was “bent on the fact that we should not go to the gasoline
station.”
ens spoke to the foremen and their crews outside his office.13
The employees told Pickens they were unhappy about the lack
of equipment, and the failure of the Respondent to furnish an
ice machine and water.14 Pickens said he was not so stupid as
to buy an ice machine. Employees asked if they “were allowed
to go to the Chevron in order to cash [their] checks.” Pickens
told them he would not give out their paychecks until Friday
afternoon because he did not want them going to the Chevron
station.15 The employees said they wanted to receive their pay-
checks in the morning, and if they did not, they would unload
their tools. The laborers began unloading their tools from their
foremen’s pickups, and Pickens told them that if they did, he
would assume they were quitting or giving up their jobs, which
the employees denied.16 The workers completed their unload-
ing and left the Respondent’s facility, going directly to the
Chevron station.
The foremen and laborers who had refused to work re-
grouped at the Chevron station and telephoned Bratcher, who
arrived an hour or so later. Foremen Salazar and Ordonez told
Bratcher the company had refused their demands for equip-
ment, water, and ice, had declined to explain how their pay was
calculated, had forbidden them to go to the Chevron to cash
their checks, had changed Friday morning paycheck distribu-
tion to the afternoon, and had told them they would be quitting
if they refused to work. The employees told Bratcher they
wanted to strike. Bratcher told them that as the Respondent had
violated federal law by telling them they couldn’t speak to him
or go to the Chevron station and other possible unfair labor
practices, they could convert the strike to an unfair labor prac-
tice strike.17 He helped the employees draw up a strike notice,
which all signed, as follows:

13 There is some disagreement as to whether the laborers were in-
volved in this second discussion with Pickens or only the foremen.
Pickens testified he had a second meeting only with the foremen. It is
clear, however, that whether Pickens included them in the second dis-
cussion, the laborers were in a position to hear what he said, as trans-
lated by Loya and by Foreman Salazar, and offered comments through
Foremen Salazar and Ordonez who translated for them.
14 Although employee testimony regarding the second discussion
with Pickens varied in some details, the employee witness accounts
were essentially consistent, and I credit their testimony. The account set
forth is an amalgam of their credible testimony.
15 While Pickens denied ever having delayed paycheck distribution
to prevent employees from meeting Bratcher at the Chevron station, he
did not deny telling employees so. I credit employee witness accounts.
16 Pickens admitted telling Foremen Salazar and Ordonez he as-
sumed they were quitting, further testifying they replied, “Yes we quit.”
I do not credit Pickens’ implied testimony that his statement was di-
rected solely to the two foremen and that they were the only ones who
responded. I credit employee Cuevas-Ayala’s testimony of what oc-
curred at that time, and I find Pickens told the group generally that if
they unloaded the tools, they had given up their jobs, to which employ-
ees insisted they were striking. I find the employees’ conduct was at all
times consistent with strike activity rather than voluntary termination
17 This account of the employee discussion regarding their decision
to strike is an amalgam of employee and Bratcher’s credible testimony.
Employee Cuevas Ayala testified his motive for joining the strike was,
in part, the Respondent’s prohibition on going to the Chevron station
and seeing or talking to Bratcher, all of which complaints he discussed
with fellow laborers prior to the strike. Aureliano Zazueta-Rivera
POST TENSION OF NEVADA, INC. 1159
WE HEREBY NOTIFY POST TENSION OF NEVADA
THAT WE ARE ON UNFAIR LABOR PRACTICE STRIKE
UNTIL FURTHER NOTICE
Agustin Cuevas Ayala Crecensio Montoya Ramirez
Leobardo Delgado Jesús Prudenciado
Alfonso Arca Salazar Aureliano Zazueta
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio Quinoz Sanchez Juan Quiroz
Teodoro Flores S Roberto Arce Salazar
Salvador Quiroz Medina Jaime Fernández
Jesús Martine Juan Delgado
Damion Garcia Brady Bratcher
Gerónimo Quiroz Ezequiel Ordonez
The group returned to the Respondent’s facility, and the work-
ers presented the strike notice to Saffin.
After presenting the strike notice to the Respondent, the
striking employees gathered at the BTOP offices and made
picket signs reading “POST TENSION OF NEVADA
UNFAIR.” The following day, on the morning of September
21, the striking employees appeared at the Respondent’s facility
at about 5 a.m. and picketed the company with the above-
described picket signs for approximately 3 hours and each
workday thereafter through the morning of September 26.
During the period September 21 to 26, the Respondent hired
eight field employees, each of whom signed a form acknowl-
edging employment as a permanent replacement for a striking
employee. The Respondent hired one of the eight as a foreman
with two of the new hires assigned to his crew. The other five
new hires were dispersed between two existing crews.18
During the morning of September 26, the strikers, having
agreed to end the strike, suspended picketing at Respondent’s
facility and presented to Mr. Saffin and Hohman an uncondi-
tional offer to return to work with the following signatures:
We the striking workers of Post Tension of Nevada
listed below hereby agree to end our Unfair Labor Practice
strike unconditionally this 26th day of September, 2007
and to return to work immediately.
Arce-Salazar Roberto Prucenciano-Orenday Jesus
Arce-Salazar Alfonzo Quiros Felix
Cuevas-Ayala Agustin Quiroz-Merino Salvador
Delgado Juan Quiroz-Sanchez Gregorio
Delgado Leobardo Ruiz-Quiroz Leonides
Fernandez Jaime Velasco-Hernandez Eduardo
Flores-Sanchez Teodoro Zazueta-Rivera Aureliano
Garcia Damian Montoya-Ramirez Crecencio

testified the employees asked Brady for his help because Pickens had
told them they had quit.
18 The Respondent offered unrebutted evidence that the Company
had experienced a decrease in work in the latter half of 2007 and, at the
time of the strike, was considering a layoff of field employees. The
Respondent’s declining work load precluded replacement of all striking
employees. Attrition further reduced the numbers of field employees;
within the first 6 weeks, three replacements terminated employment.
Martinez Jesus Amaya-Ruiz David
Ordonez Ezequiel
Upon receiving the unconditional offer to return to work,
Hohman told the workers they had been permanently replaced.
On that or the next day, each employee signed a document
entitled “Preferred Hire List” as follows:
Delgado Leobardo Crecencio Montoya Ramirez
Ezequiel Ordonez G Gregorio Quiroz Sanchez
Damian Garcia Salvador Quiroz Merino
Roberto Arce Salazar Leonides Ruiz Quiroz
Jaime Fernandez Eduardo Velasco Hernandez
Agustin Cuevas Ayala Juan Delgado
Teodoro Flores Sanchez Felix Quiroz
Alfonso Arce Salazar Jesus Prucenciano Orenday
David Amaya Ruis Jose O Sequera
Aureliano Zazueta Rivera Jerónimo Quiroz
Following the Regional Office’s decision to issue complaint
in this matter, the Respondent on December 11, mailed or hand
delivered offers of reinstatement to certain of the employees
named in complaint paragraph 5(f), stating in part: “Pursuant to
your offer to return to work, Post Tension of Nevada is pre-
pared to put you back to work in your position immediately.”
Pursuant to the letters, the Respondent laid off all but one of the
permanent replacements19 and returned the following strikers to
work on the dates indicated:
Salvador (Geronimo) Quiroz-Merino Date unknown
Eduardo Velasco-Hernández December 12
Jesus Martinez December 12
Teodoro Flores-Sanchez December 13
Crecencio Montoya-Ramirez December 17
As of the date of the hearing, the Respondent had not re-
turned the following strikers to work:
David Amaya-Ruiz Jesus Prudenciano-Orenday
Alfonzo Arce-Salazar Felix Quiros
Agustin Cuevas-Ayala Gregorio Quiroz-Sanchez
Leobardo Delgado Aureliano Zazueta-Rivera
Damian Garcia
F. Brady Bratcher’s Application for Employment
with the Respondent
Although the Respondent hands out employment applica-
tions to individuals who request them at the Phoenix facility
(office applicants) and accepts completed forms, the Respon-
dent does not hire field employees from such applications.20
The Respondent’s hiring procedure is to select a foreman, often
from its existing field workers, who then forms a crew, typi-
cally drawing from among his acquaintances and relatives.
Upon selection for a field crew, each laborer completes an em-
ployment application and other employment forms. In 2007, no

19 During the hearing, the Respondent represented that it had re-
tained replacement Contantino Quiroz who, as a rehire, had inadver-
tently not been flagged as a replacement.
20 The Respondent accepts applications essentially as an accommo-
dation to job seekers receiving unemployment benefits who need to
document work searches.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1160
field employee was hired from the 19 applications submitted by
office applicants. During that period, Maria Perez (M. Perez)
worked in the Phoenix facility’s office as a clerical employee
with authority to dispense employment applications.21
On September 7, Bratcher went to the Respondent’s Phoenix
office wearing an orange cap on which “Iron Workers Local
75” was enscribed. Bratcher asked M. Perez for an employ-
ment application, telling her he wanted to work and to organize.
M. Perez made a telephone call to Pickens from an adjacent
office, telling him that Bratcher wanted to talk to him or Saffin
and/or to get an employment application. Pickens told M. Perez
to tell Bratcher to leave or the police would be called, which
she did. M. Perez steadily refused to give Bratcher an applica-
tion.22 Had Bratcher been given an application, he would have
completed it, and if offered employment, he would have ac-
cepted it.
DISCUSSION
A. Positions of the Parties
The General Counsel contends that when the Respondent’s
field employees refused to work on September 20, they were
engaged in an unfair labor practice strike protesting, in part, the
Respondent’s unfair labor practices and that the Respondent
terminated them for striking. When, on September 26, the
striking employees made an unconditional offer to return to
work, the Respondent unlawfully treated them as economic
strikers. The General Counsel further contends that the Re-
spondent unlawfully engaged in surveillance, refused to con-
sider union organizer, Bratcher, for employment, and imposed
more onerous terms and conditions of employment by prohibit-
ing its employees from cashing checks at a facility close to the
Respondent’s facility.
The Respondent argues that any management directions re-
garding union activity were lawfully directed solely at its field
foremen who are statutory supervisors. The September 20
work stoppage was, in the Respondent’s view, a purely eco-
nomic strike. Although the Respondent’s superintendent in-
formed the strikers that by refusing to work, he assumed they
were quitting, that statement, too, was directed only at field
foremen, and he was justified in the assumption. When the
Respondent realized the employees were striking, the company
lawfully responded to the strike by hiring permanent replace-
ments and placing the strikers’ names on a preferential hiring
list. Although a downturn in business limited job availability,
the Respondent intended to reinstate strikers as openings oc-
curred in keeping with Board rules regarding economic strikers.
Upon issuance of the complaint on November 30, the Respon-
dent, without admitting guilt and for the purpose of limiting
potential backpay, terminated the permanent replacements still
employed and offered reinstatement to six strikers, four of

21 The complaint alleges that M. Perez is a supervisor and agent of
the Respondent within the meaning of the Act. No evidence was ad-
duced that M. Perez possessed any of the indicia of Sec. 2(11) of the
Act.
22 Possessing actual authority from Pickens, M. Perez served as the
Respondent’s agent in her direction to Bratcher. Wal-Mart Stores, Inc.,
350 NLRB 879 (2007).
whom accepted. As for refusing to consider Bratcher for em-
ployment, the Respondent contends that, given its hiring proce-
dures, it would not have hired or considered Bratcher for hire
even in the absence of his union affiliation.
B. Alleged Independent Violations of 8(a)(1)
1. Surveillance
The complaint alleges that on August 29 and 31, Pickens en-
gaged in surveillance of employees’ union activities at the
Chevron station. In the early morning of August 29, a number
of the Respondent’s field employees along with Foreman Guer-
erro were engaged in the protected activity of speaking with
union representative, Bratcher, about employment concerns.
As they talked, Pickens appeared and told Foreman Guerrero
that he needed to get to work. I have credited Pickens’ testi-
mony that he regularly purchased food items at the Chevron
station, and there is no evidence that his appearance in that
public place at that time was for the purpose of observing the
field employees’ interaction with Bratcher. Mere supervisory
observation of “open, public union activity on or near [an em-
ployer’s] property does not constitute unlawful surveillance.”
Town & Country Supermarkets, 340 NLRB 1410 (2004); Fred
Wallace & Son, 331 NLRB 914 (2000); see also Consolidated
Biscuit Co., 346 NLRB 1175, 1176 (2006). In these circum-
stances, Pickens’ presence at the Chevron station cannot be
deemed surveillance even if he observed union activity while
there.
The same analysis applies to Pickens’ August 31 visit to the
Chevron station. I have found the evidence does not establish
that Pickens went to the Chevron station on that date for the
purpose of observing employees engaged in protected activity
or that he photographed any of his employees while there. In
the absence of such evidence, his mere observation of employ-
ees’ open, public union activity does not constitute unlawful
surveillance.
2. Promulgation and maintenance of overly broad
and discriminatory rules
The complaint alleges that during early September the Re-
spondent orally promulgated and maintained overly broad and
discriminatory rules by prohibiting employees from talking to
any union representative and/or assembling or cashing their
paychecks at a facility (the Chevron station) where they also
engaged in protected, concerted activities.
I have credited testimony that Pickens told the field foremen
not to take the laborers to the Chevron station where they were
likely to meet Bratcher and that he told them the Respondent
would no longer distribute paychecks on Friday mornings to
further discourage employees’ interaction with the Union. I
have also accepted unrebutted testimony that the foremen
communicated. Pickens’ prohibitions to the field employees.
The evidence establishes that the Respondent’s foremen had
a longstanding, company-accepted practice of transporting the
company’s field employees to the local Chevron station where
they purchased food and beverages before proceeding to the
POST TENSION OF NEVADA, INC. 1161
worksites.23 Company acceptance of the practice changed only
after Bratcher began meeting employees there to garner support
for the Union. The Respondent’s consequent prohibition
against the foremen taking field employees to the Chevron
station was an overt attempt to prevent its employees from
speaking with the union organizer.
In pertinent application of Section 7 of the Act, the Respon-
dent’s field employees had the statutory right to meet with a
union organizer in the course of their regular stops at the Chev-
ron station.24 Section 8(a)(1) of the Act provides: “It shall be
an unfair labor practice for an employer (1) to interfere with,
restrain, or coerce employees in the exercise of rights guaran-
teed in Section 7.”
The Respondent argues that even assuming Pickens issued a
directive not to go to the Chevron station that included or im-
pacted laborers as well as supervisors, his intention was only to
lawfully curtail supervisory involvement with the Union, and,
in any event, supervisors and laborers alike refused to com-
ply.25 The test under Section 8(a)(1) does not turn on the em-
ployer’s motive or whether the coercion succeeded or failed.
The test is whether the employer engaged in conduct which it
may be reasonably said tends to interfere with the free exercise
of employee rights under the Act. Curwood, Inc., 339 NLRB
1137, 1140 (2003); Miller Electric Pump & Plumbing, 334
NLRB 824 (2001); American Freightways Co., 124 NLRB 146,
147 (1959). An employer violates Section 8(a)(1) when its
supervisors and agents engage in conduct tending to impede or
discourage union involvement. F. W. Woolworth Co., 310
NLRB 1197 (1993); Williamhouse of California, Inc., 317
NLRB 699 (1995).
The Respondent further argues that even assuming Pickens
told the field foremen not to take the laborers to a location
where they could meet up with union representatives, such an
instruction was lawful. The Respondent asserts that to do oth-
erwise would violate Section 8(a)(2) of the Act by contributing
support to a labor organization. It is true the situation presented
a dilemma for the Respondent. An unquestionable conflict
existed between the Respondent’s right and even obligation to
curtail its supervisors’ involvement with or encouragement of
the Union and its employees’ right to engage in protected union
activities. The Respondent could not, however, lawfully re-
solve the conflict by trampling on employees’ Section 7 rights.

23 An employer may prohibit employees’ union activity during
“work time,” that is, periods when employees are performing actual job
duties excluding the employees’ own time. See Our Way, Inc., 268
NLRB 394, 394–395 (1983). The Respondent does not contend its
employees were on worktime during morning stops at the Chevron.
24 Section 7 of the Act (in pertinent part) provides:
Employees shall have the right to self-organization, to form,
join, or assist any labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all such activities.
25 The Respondent argues that employees “must have seen that the
directive not to go to the Chevron was not much of a directive if every-
one continued to go there.”
The Respondent’s longstanding practice was for its field
foremen to take their crews of laborers to the Chevron station
nearly every working morning. In the summer of 2007, both
foremen and laborers began meeting a union representative
there. Although the foremen’s interaction with the union repre-
sentative was unprotected, the laborers’ interaction was pro-
tected. When the Respondent ordered the foremen to discon-
tinue the morning Chevron-station stops, their compliance with
the order would necessarily have interfered with and restrained
the laborers in their protected activity of meeting with a union
representative. While the Respondent’s prohibition of foremen
union activity was lawful, its chosen effectuation of the prohi-
bition—banning the customary morning Chevron-station
stops—was oversweeping and inescapably interfered with em-
ployee protected activity, regardless of the Respondent’s mo-
tive.26 The Respondent’s conduct meets the Board’s objective
8(a)(1) test of tending to interfere with its employees’ free ex-
ercise of Section 7 rights.
The Respondent makes a tacit de minimis argument, con-
tending that Pickens’ alleged prohibition against employees
congregating at the Chevron station “was not much of a direc-
tive” since it was generally disregarded. However, the ineffec-
tiveness of Pickens’ prohibition is irrelevant to the objective
standard the Board applies to 8(a)(1) allegations. See Field-
crest Cannon, Inc., 318 NLRB 470, 490 (1995). The fore-
men’s communication of the prohibition had an objectively
reasonable tendency to intimidate and thus interfered with,
restrained, or coerced the field employees in the exercise of
rights guaranteed in Section 7. It thereby violated Section
8(a)(1) of the Act.
3. Pickens’ September 20 threat of discharge
There is no evidence the field employees’ cessation of work
on September 20, was other than a work stoppage for “mutual
aid or protection” protected by Section 7 of the Act. An em-
ployer violates Section 8(a)(1) of the Act by discharging em-
ployees who engage in a protected work stoppage or strike or
threaten to do so. NLRB v. Washington Aluminum Co., 370
U.S. 9, 14–17 (1962). By informing the field employees he
would assume they were quitting if they unloaded their tools
and did not go to work the morning of September 20, Pickens
threatened them with termination for participating in a strike.
Such threats violate Section 8(a)(1) of the Act. Accurate Wire
Harness, 335 NLRB 1096 (2001).27
C. Alleged Violations of Section 8(a)(3) and (1) of the Act
1. Alleged imposition of more onerous terms and
conditions of employment
The complaint alleges the Respondent violated Section
8(a)(3) and (1) of the Act in the first week of September by
“impos[ing] more onerous terms and conditions of employment

26 As there is no evidence the Respondent explored any less drastic
method of controlling its foremen’s union activity, it is unnecessary to
consider whether the circumstances obviated a less coercive approach.
27 The threat of discharge was made to the field foremen and the
field laborers alike; the General Counsel does not contend that threats
made to the field foremen, who are stipulated 2(11) supervisors, vio-
lated the Act
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1162
by prohibiting its employees from cashing checks” at the Chev-
ron station.
During the relevant period, it was routine for some field em-
ployees to cash their paychecks at the Chevron station during
the crews’ regular Friday-morning stops there. After Bratcher
began meeting field employees during the morning stops, the
Respondent threatened to delay distribution of Friday pay-
checks with the stated purpose of discouraging the meetings. In
his posthearing brief, counsel for the General Counsel argues
that the Respondent’s rule prohibiting employees from cashing
their paychecks at the Chevron station adversely affected its
employees’ working conditions by interfering with a “fast and
easy way for employees to convert paychecks to dollars” in
violation of Section 8(a)(3) of the Act. There is no question
that delayed distribution of paychecks from Friday mornings to
Friday afternoons inconvenienced some employees, and it is
clear the Respondent advertised the delay as a maneuver calcu-
lated to stymie employees’ union activities. However, the evi-
dence does not establish an 8(a)(3) violation for several rea-
sons.
First, the evidence does not show that the Respondent did, in
fact, change its paycheck distribution practice. Credible evi-
dence was adduced that Pickens and Loya told employees they
would change the distribution practice to prevent employee
interaction with Bratcher. There is also some evidence, albeit
neither consistent nor unambiguous, that during the relevant
period the Respondent occasionally failed to distribute pay-
checks on Friday mornings. But there is no definite evidence
of an actual change. During the relevant period, the Respon-
dent continued, at least some of the time, to distribute pay-
checks on Friday mornings, and there is no evidence that on
those Friday mornings when the Respondent delayed the pay-
checks, the delay was not due to the same nondiscriminatory
factors that had delayed distribution in the past. There is insuf-
ficient evidence, therefore, to support the allegation that the
Respondent violated Section 8(a)(3) of the Act in changing its
paycheck distribution policy.
Second, even assuming the Respondent did change its pay-
check distribution policy so as to curtail Friday morning distri-
bution, there is no evidence the Respondent in any way prohib-
ited employees from cashing their paychecks at the Chevron
station. Employees were free to cash paychecks there at any
time they chose after receipt of the paycheck. The complaint
allegation as stated is unproven.
Third, the General Counsel has not shown that Friday morn-
ing paycheck cashing at the Chevron station was a term and
condition of employment, discriminatory preclusion of which
would violate 8(a)(3). The convenience of Friday-morning
check cashing was not specific or even relevant to the field
employees’ employment relationship with the Respondent, and
it did not impact their working conditions. The Respondent
changed none of the employees’ basic terms or working condi-
tions, and the Board does not consider mere employee conven-
ience to be an aspect of an employment relationship. See Suc-
cess Village Apartments, Inc, 350 NLRB 908, 909 (2007).
Even though the Respondent may not have violated Section
8(a)(3) by altering its paycheck distribution timing, when Pick-
ens and Loya ascribed an unlawful motive to delayed pay-
checks they violated Section 8(a)(1) of the Act. Informing
employees that an employer’s conduct is discriminatorily moti-
vated coerces employees and independently violates the Act
even if the conduct has not actually occurred or is not unlawful.
Success Village Apartments, Inc, supra; K-Mart Corp., 336
NLRB 455 (2001); Owens Corning Fiberglass Co., 236 NLRB
479, 480 (1978). Accordingly, I find that by informing field
employees their paychecks were delayed in order to interfere
with their engaging in protected union activities, the Respon-
dent violated Section 8(a)(1) of the Act.
2. Alleged discharge of striking employees
As detailed above, on September 20, Pickens unlawfully
threatened field employees with termination if they participated
in a strike. Paragraph 5(f) of the complaint alleges that the
Respondent thereafter discharged the striking employees.
There is, however, no evidence the Respondent took any action
reflecting an intention to discharge the strikers. Rather, the
evidence establishes that the Respondent consistently treated
the employees as economic strikers until issuance of the Com-
plaint, at which time the Respondent applied reinstatement
rights due to unfair labor practice strikers.28 I shall, therefore,
dismiss this allegation of the complaint.
3. The unfair labor practice strike
The General Counsel asserts that when the field employees
ceased work on September 20 and went on strike, they were
engaged in an unfair labor practice strike, while the Respondent
contends it was an economic strike. It is true, as the Respon-
dent argues, that a number of economic considerations (e.g.
dissatisfaction with the Respondent’s pay calculations, failure
of the Respondent to furnish tools and water and ice) were mo-
tivating factors in the strike. It is also true that prior to com-
mencement of the strike, the Respondent committed serious
unfair labor practices by prohibiting and discouraging employ-
ees from congregating at a location where they met with a un-
ion representative and by threatening them with discharge if
they went on strike. The question is whether the unfair labor
practices contributed to causation of the strike.
In Golden Stevedoring Co., 335 NLRB 410, 411 (2001) (ci-
tations omitted), the Board explained:
It is well established that a work stoppage is considered an un-
fair labor practice strike if it is motivated, at least in part, by
the employer's unfair labor practices, even if economic rea-
sons for the strike were more important than the unfair labor
practice activity. It is not sufficient, however, merely to show
that the unfair labor practices preceded the strike. Rather,
there must be a causal connection between the two events.
In determining whether a causal connection between the strike
and preceding unfair labor practices exists, the Board looks to

28 In his brief counsel for the General Counsel inconsistently asserts
that the Respondent has not offered to return any striker to work and
that at least 10 (out of 15) striking employees have not been offered
reinstatement, suggesting that some strikers have been offered rein-
statement. Insofar as there is a dispute about whether the Respondent
has effected reinstatement of any strikers, the remedial provisions of
this decision provide for resolution of that question.
POST TENSION OF NEVADA, INC. 1163
the strikers’ state of mind. See C-Line Express, 292 NLRB 638,
639 (1989) (lack of evidence strikers motivated to prolong
strike by coercive employer statements on the picket line).
When it is reasonable to infer from the record that an em-
ployer's unlawful conduct played a part in the decision of em-
ployees to strike, the strike is an unfair labor practice strike.
Child Development Council of Northeastern Pennsylvania, 316
NLRB 1145 fn. 5 (1995), citing NLRB v. Cast Optics Corp.,
458 F.2d 398, 407 (3d Cir. 1972), cert. denied 419 U.S. 850
(1972) (as long as an unfair labor practice has “anything to do
with” causing the strike, it will be considered an unfair labor
practice strike). The burden is on the employer to show that the
strike would have occurred even if [it] had not committed un-
fair labor practices. Larand Leisurelies, Inc. v. NLRB, 523 F.2d
814, 820 (6th Cir. 1975).
Viewing the record as a whole, the evidence supports a find-
ing that the Respondent’s unfair labor practices contributed to
the September 20 strike and/or thereafter prolonged it. Al-
though the field foremen focused on economic issues in their
meetings with Pickens on September 20, several field employ-
ees testified credibly of their concurrent displeasure at being
restricted from the Chevron station, at being told to whom they
could talk, and at being told their paychecks would be delayed
to prevent them from meeting with Bratcher, all of which con-
stitute unfair labor practices. The field employees were also
unhappy about Pickens’ unlawful threat that their work stop-
page was tantamount to quitting, which information they re-
lated to Bratcher when he met with them a short time after they
ceased work.
Citing C-Line Express, supra, the Respondent contends that
Bratcher conceded the strike was economic when he told em-
ployees it could be converted to an unfair labor practice strike.
The Respondent further argues that if the Respondent commit-
ted any unfair labor practices, it did so prior to the employees’
economically motivated walkout and that past unfair labor
practices cannot be utilized to alter the strike category. Even
assuming the Respondent asserts a colorable defense, its argu-
ment gives undue weight to Bratcher’s apparent perception that
the strike needed to be “converted.” When employees met with
Bratcher very shortly after unloading their tools and leaving
work, they detailed their grievances with the Respondent, in-
cluding the Respondent’s prohibition against going to the
Chevron station, its announced change in the paycheck distribu-
tion schedule, and Pickens’ parting admonition that they would
be quitting if they refused to work, all of which are unfair labor
practices. These unfair labor practices were contemporaneous
with the strike. Since employees bore the unlawful conduct in
mind as they contemplated striking, the conduct, at least in part,
catalyzed the strike. Bratcher’s reference to strike conversion
neither vitiates nor alters the employees’ motivation. More-
over, C-Line Express is distinguishable from the instant situa-
tion. In that case, the Board found no evidence that strikers
were motivated to prolong their strike by coercive statements to
several strikers or that strikers were even aware of an unlawful
refusal to furnish information. In short, no evidence showed
the C-Line Express strike was motivated by anything other than
inability to reach a bargaining agreement. That is not the case
here. While employee witness recollections differed in detail-
ing strike discussions, their credible testimony as a whole es-
tablishes that the employees considered and were provoked by
specific unfair labor practices in deciding to strike, and the
Respondent has not met its burden to show the strike would
have occurred even if it had not committed unfair labor prac-
tices. Accordingly, I conclude the September 20 strike was an
unfair labor practice strike from its inception.
4. Failure to reinstate unfair labor practice strikers
On September 26, the strikers presented an unconditional of-
fer to return to work signed by each striker to the Respondent.
Upon its receipt, Hohman told the workers they had all been
permanently replaced and directed each to sign a preferential
hiring list. No striker was returned to work until December
when the Respondent recalled five strikers.
Unlike the obligation of an employer to an economic striker,
upon an unconditional offer to return to work, an employer
must immediately reinstate an unfair labor practice striker.
Sproule Construction Co., 350 NLRB 774 fn. 2 (2007);
Nortech Waste, 336 NLRB 559, 565 (2001). By failing imme-
diately to reinstate the unfair labor practice strikers who uncon-
ditionally offered to return to work on September 26, the Re-
spondent violated Sections 8(a)(3) and (1) of the Act.
5. Alleged refusal to consider Brady Bratcher
for employment
The General Counsel alleges the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by refusing to consider. Bratcher
for hire on September 7. On September 7, Bratcher presented
at the Respondent’s facility as a legitimate office applicant.29
Because Bratcher was a union organizer, the Respondent re-
fused his request for an employment application and threatened
to call the police if he persisted. While the Respondent’s con-
duct violated Section 8(a)(1) of the Act,30 the issue of whether
the conduct also constituted a discriminatory refusal to con-
sider Bratcher for employment in violation of Section 8(a)(3) of
the Act depends on the analysis set forth in FES, 331 NLRB 9,
15 (2000), supp. 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d
Cir. 2002).
Regarding discriminatory refusals to consider for hire, the
Board stated in FES:
[T]he General Counsel bears the burden of showing the fol-
lowing . . . (1) that the respondent excluded applicants from a
hiring process; and (2) that antiunion animus contributed to
the decision not to consider the applicants for employment.
Once this is established, the burden will shift to the respon-
dent to show that it would not have considered the applicants
even in the absence of their union activity or affiliation.31

29 Bratcher’s position as a full-time paid official of the Union did not
prevent his being a bona fide applicant. Sproule Construction Co.,
supra.
30 Refusal to give a person an employment application that is cus-
tomarily proffered to all other job seekers solely because of the per-
son’s union affiliation is coercive regardless of whether or not complet-
ing the application might lead to employment. See Tradesmen Interna-
tional, Inc., 351 NLRB 399 fn. 4 (2007).
31 Id at 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1164
The uncontroverted evidence herein is that the Respondent
never hires field employees through the office application
channel. Rather the Respondent’s field foremen hire field
workers, typically drawing from among acquaintances and
relatives, and the foremen do not review office applications for
employment leads. There is no contention the Respondent’s
field employment practices are other than neutral and legiti-
mate. See Ken Maddox Heating & Air Conditioning, 340
NLRB 43, 44 (2003) and cases cited at fn. 4 (preference in
employing individuals referred by existing employees is a le-
gitimate policy). Therefore, filing an employment application
at the Respondent’s facility is not part of the Respondent’s
employment process. Even though the Respondent discrimina-
torily precluded Bratcher from filing an employment applica-
tion on September 7, the General Counsel has not met his bur-
den of showing that the Respondent “excluded [Bratcher] from
a hiring process”32 and has not established a prima facie viola-
tion of the Act. Even assuming that the General Counsel has
met his burden, the Respondent has met its shifted burden of
“show[ing] that it would not have considered [Bratcher] even in
the absence of [his] union activity or affiliation.”33 Accord-
ingly, I shall dismiss the 8(a)(3) portion of this allegation of the
complaint.
CONCLUSIONS OF LAW
1. Post Tension of Nevada, Inc., is and has been at all times
material an employer engaged within the meaning of Section
2(2), (6), and (7) of the Act.
2. District Council of Iron Workers of the State of California
and Vicinity (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
(a) In early September 2007, orally promulgating and main-
taining overly broad and discriminatory work rules designed to
prohibit employees from meeting with union representatives at
a local gas station.
(b) Threatening employees with discharge if they engaged in
a strike.
(c) Informing employees it would not issue paychecks on
Friday mornings in order to interfere with employees’ con-
certed, protected activity of meeting with a union representa-
tive.
(d) Refusing to give a person an employment application be-
cause of the person’s union affiliation.
4. The strike engaged in by certain of the Respondent’s field
employees on September 20, was an unfair labor practice strike.
5. Respondent violated Section 8(a)(3) and (1) of the Act on
September 26, 2007, by refusing to reinstate the following
unfair labor practice striking employees upon their uncondi-
tional offers to return to their former or substantially equivalent
positions of employment:

32 Id at 15.
33 Id at 15. See Tradesmen International, Inc., 351 NLRB 399, 401
(2007) (rejection of applicants who violated policy against unscheduled
walk-ins lawful).
Agustin Cuevas Ayala Crecensio Montoya Ramirez
Leobardo Delgado Jesús Prudenciado-Orenday
Alfonso Arca Salazar Aureliano Zazueta-Rivera
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio Quiroz Sanchez Leonidas Ruiz-Quiroz
Teodoro Flores Sanchez Damion Garcia
Salvador Quiroz Merino Felix QuirosJesús Martinez
6. The unfair labor practices set forth above affect com-
merce within the meaning of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having, on September 26, unlawfully failed and
refused to reinstate to employment the employees named be-
low, it must offer them immediate and full reinstatement to
their former positions insofar as it has not already done so, or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed:34
Agustin Cuevas Ayala Crecensio Montoya Ramirez
Leobardo Delgado Jesús Prudenciado-Orenday
Alfonso Arca Salazar Aureliano Zazueta-Rivera
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio Quiroz Sanchez Leonidas Ruiz-Quiroz
Teodoro Flores Sanchez Damion Garcia
Salvador Quiroz Merino Felix Quiros
Jesús Martinez
Respondent must also make the named employees whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of refusal to hire to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent must rescind its unlawful and discrimina-
tory work rules prohibiting employees from gathering at a local
gas station.
[Recommended Order omitted from publication.]

34 The reinstatement ordered herein is subject to defeasance if, at the
compliance stage, the General Counsel fails to carry his burden of
going forward with evidence that a discriminatee would still be em-
ployed by the Respondent if the discriminatee had not been the victim
of discrimination. Tradesmen International, Inc., supra at fn. 16, citing
Oil Capitol Sheet Metal, 349 NLRB 1348, 1351 (2007)