Quality Mechanical Insulation

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 798 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
Quality Mechanical Insulation, Inc. and International
Association of Heat and Frost Insulators and
Asbestos Workers, Local 73 of Arizona, AFL–
CIO, CLC. Cases 28–CA–18031–1, 28–CA–
18031–2, 28–CA–18031–3, 28–CA–18031–4, 28–
CA–18161, 28–CA–18280, 28–CA–18281, and
28–CA–18286
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On July 7, 2003, Administrative Law Judge Gregory
Z. Meyerson issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, and a request
for oral argument.1 The General Counsel filed an an-
swering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions as
modified,4 and to adopt the recommended Order as modi-
fied and set forth in full below.5

1 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
2 No exceptions were filed to the judge’s dismissal of the complaint
allegations that the Respondent violated Sec. 8(a)(3) and (1) of the Act
by (1) terminating employee Miguel Aguilar on June 18, 2002; (2)
terminating employees Jaime and Juan Carlos Haro on July 26, 2002;
and (3) failing to hire or consider for hire various employee-applicants
on various dates in June and July 2002.
3 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.
4 The judge found that Fred Morales’ questioning of the Haro broth-
ers on June 19, 2002, violated Sec. 8(a)(1) of the Act. While we agree
with the judge that the conduct was coercive in nature, and constituted
an unlawful interrogation, we find that the employees would not rea-
sonably assume from the questioning that their union activities had
been placed under surveillance. See Fred’k Wallace & Son., 331
NLRB 914 (2000). Accordingly, we shall dismiss the complaint allega-
tion that Morales’ June 19 conduct created an impression among the
Respondent’s employees that their union activities were under surveil-
lance.
5 We shall modify the judge’s conclusions of law, recommended Or-
der, and notice to more closely conform to the facts of the case. We
shall also modify the recommended Order in accordance with Excel
Container, Inc., 325 NLRB 17 (1997).
AMENDED CONCLUSIONS OF LAW
1. Delete the judge’s Conclusion of Law 3(b) and
reletter the remaining paragraphs accordingly.
2. Substitute the following for the judge’s Conclusion
of Law 3(d).
“(d) Prohibiting its employees from speaking with, or
taking papers from, a union organizer.”
3. Substitute the following for the judge’s Conclusion
of Law 3(e).
“(e) Coercing or intimidating its employees by sug-
gesting that bodily harm be done to an organizer of the
Union in order to discourage its employees from engag-
ing in union activities.”
ORDER
The National Labor Relations Board orders that the
Respondent, Quality Mechanical Insulation, Inc., Phoe-
nix, Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees regarding their union
membership, activities, and sympathies.
(b) Threatening its employees with unspecified repri-
sals to discourage them from engaging in union and other
concerted activities.
(c) Prohibiting its employees from speaking with, or
taking papers from, organizers on behalf of the Union, or
any other union.
(d) Coercing or intimidating its employees by suggest-
ing that bodily harm be done to an organizer of the Un-
ion, or any other union, in order to discourage its em-
ployees from engaging in union activities.
(e) Threatening employee-applicants with trespassing
and to summon the police, because of their union affilia-
tion and other concerted activities.
(f) Engaging in surveillance of employee-applicants by
photographing them, because of their union affiliation
and other concerted activities.
(g) In any like or related manner 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 after service by the Region, post at
its warehouse office in Phoenix, Arizona copies of the
attached notice (in both English and Spanish), marked
“Appendix.”6 Copies of the notice (in both English and
6 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.”
340 NLRB No. 91
QUALITY MECHANICAL INSULATION, INC. 799
Spanish), on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice (in both English and Spanish) to all
current employees and former employees employed by
the Respondent at any time since June 19, 2002.
(b) 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 the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations not specifically
found.

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 do anything that interferes with these
rights. Specifically:
WE WILL NOT coercively question you about your
support for, or activities on behalf of, International Asso-
ciation of Heat and Frost Insulators and Asbestos Work-
ers, Local 73 of Arizona, AFL–CIO, CLC (the Union), or
any other union.
WE WILL NOT threaten you with unspecified reprisals
in order to discourage you from engaging in activities on
behalf of the Union, or any other union.
WE WILL NOT prohibit you from speaking with, or
taking papers from, organizers on behalf of the Union, or
any other union.
WE WILL NOT coerce or intimidate you by suggest-
ing that bodily harm be done to an organizer of the Un-
ion, or any other union, in order to discourage you from
engaging in union activities.
WE WILL NOT threaten applicants for employment
with trespassing and to summon the police, because of
their affiliation with the Union, or any other union, or
because they engage in group activities protected under
the law.
WE WILL NOT engage in surveillance of applicants
for employment by photographing them, because of their
affiliation with the Union, or any other union, or because
they engaged in group activities protected under the law.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.

QUALITY MECHANICAL INSULATION,
INC.
William Mabry III, Esq., for the General Counsel.
Thomas M. Rogers, Esq., of Phoenix, Arizona, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge.
Pursuant to notice, I heard this case in Phoenix, Arizona, on 9
days between March 17 and 28, 2003. This case was tried fol-
lowing the issuance of a Third Consolidated Complaint and
Notice of Hearing (the complaint), by the Regional Director for
Region 28 of the National Labor Relations Board (the Board),
on January 30, 2003. The complaint was based on a number of
original and amended unfair labor practice charges, as cap-
tioned above, filed by International Association of Heat and
Frost Insulators and Asbestos Workers, Local 73 of Arizona,
AFL–CIO, CLC (the Union or Charging Party).1 It alleges that
Quality Mechanical Insulation, Inc. (the Employer or Respon-
dent), violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The Respondent filed a timely answer
to the complaint denying the commission of the alleged unfair
labor practices.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based on the record, my consideration of
the briefs filed by counsel for the General Counsel and counsel
for the Respondent, and my observation of the demeanor of the

1 In its answer, the Respondent admits the various dates on which the
enumerated original and amended charges were filed by the Union and
served on the Respondent as alleged in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
witnesses,2 I now make the following findings of fact and con-
clusions of law.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is an Arizona corporation, with an office and ware-
house in Phoenix, Arizona (the warehouse), and jobsites lo-
cated throughout the State of Arizona, where it has been en-
gaged in business as a mechanical insulator contractor. Further,
I find that during the 12-month period ending June 26, 2002,
the Respondent, in the course and conduct of its business opera-
tions, performed services valued in excess of $50,000 in states
other than the State of Arizona.
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The General Counsel alleges that on various dates in June
and July 2002,3 the Respondent failed and refused to either hire
or to consider for hire a number of employee-applicants for
employment because of their membership in, affiliation with, or
activities on behalf of the Union. It is further alleged that the
Respondent discharged employees Miguel Aguilar, Juan Carlos
Haro, and Jaime Haro because of their support for the Union.
Also, the complaint alleges that during the same time period,
the Respondent threatened its employees with various adverse
employment action including discharge and bodily harm, and
did isolate employees, impose more onerous working condi-
tions on an employee and increase his workload, all as a result
of employees’ union activities. Further, it is claimed that the
Respondent interrogated its employees regarding their union
affiliation, threatened employee-applicants with trespassing
charges and to summon the police, and engaged in surveillance
of them by, among other means, photographing their activities.
At approximately the same period of time, the Respondent is
alleged to have promulgated an overly broad rule prohibiting
union activity at work, disparaged the Union, solicited its em-
ployees to do bodily harm to a union organizer, and expressed
to its employees the futility of their union activities.
The Respondent denies the commission of any unfair labor
practices. Specifically, it denies any effort to refuse to hire or

2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
3 All dates are in 2002 unless otherwise indicated.
consider for hire applicants for employment because of their
union membership, affiliation, or activities. It is the Respon-
dent’s position that the alleged employee-applicants for em-
ployment named in the complaint attempted to apply for work
at a time when the Respondent was not hiring, as evidenced by
signs posted at its warehouse indicating, “Not Hiring” and “No
Trepassing.” Further, the Respondent contends that it has a
long established priority procedure for the hiring of employees.
Allegedly, its need for insulators4 at a project is often sudden,
and an attempt is usually made to satisfy the demand by a reas-
signment of existing employees. However, where this is not
possible, the Respondent initially makes an effort to recall for-
mer employees who were previously laid off because of an
economic reduction-in-force. If this does not satisfy its de-
mand, the Respondent next makes an attempt to hire individu-
als who are referred by existing employees. Only after this
effort fails would the Respondent consider hiring applicants
“off the street,” who simply apply for a job without a reference
from an existing employee. According to the Respondent, this
hiring procedure is intended to provide it with qualified, reli-
able employees, unrelated to whether an applicant is affiliated
with a union or not.
Regarding the discharge of employees Miguel Aguilar, Juan
Carlos Haro, and Jamie Haro, the Respondent contends that
these were all for good cause, unrelated to any union activity or
affiliation. Allegedly, Aguilar was fired for the use of an alias,
and the two Haros, who are brothers, were fired because of low
production and poor attitude. Further, the Respondent denies
that any of its actions interfered with, restrained, or coerced
employees in the exercise of their Section 7 rights. It is the
Respondent’s position that it has evidenced no animus toward
the Union. According to the Respondent, it is allegedly the
Union that has demonstrated hostility and a disregard for the
rights of the Respondent, having interrupted its legitimate busi-
ness operations through trespassing and other unlawful means.
B. Facts and Analysis
1. Background
The Respondent’s principal office is located in Morristown,
Arizona. However, the Respondent maintains another office at
its warehouse in Phoenix, Arizona. It was at this warehouse
location that most of the alleged unfair labor practices occurred.
The owner of the Respondent is Mike Skaggs, whose father,
Ray Skaggs, is the general manager. Reporting directly to Ray
Skaggs (Skaggs) are two superintendents, brothers Albert and
Fred Morales. The Morales brothers are located at the Respon-
dent’s office and warehouse in Phoenix, from which location
Fred Morales supervises the Respondent’s jobsites in the east
part of the metropolitan area, while Albert Morales supervises
the jobsites in the west part of the community. During June and
July of 2002, the Respondent had approximately 40 field em-
ployees, including approximately 8 foremen. Most of the other
approximately 32 field employees were installers. The Morales
brothers supervise field personnel, are responsible for securing
an adequate number of installers for each job, monitoring the
progress of the work, and obtaining material for each jobsite.
4 The term insulator is used interchangeably with the term installer.
QUALITY MECHANICAL INSULATION, INC. 801
The field personnel report directly to the Morales brothers, who
in turn report to Ray Skaggs. There is no dispute between the
parties that the Morales brothers, and Ray and Mike Skaggs are
all supervisors and agents of the Respondent, within the mean-
ing of the Act.
However, the parties disagree as to the supervisory and
agency status of the Respondent’s foremen, specifically Anto-
nio Galvan, who is alleged in the complaint as both a supervi-
sor and an agent. It is the Respondent’s position that it custom-
arily refers to the men who are placed “in charge” of a particu-
lar jobsite as “leads” or “foremen.” The two superintendents
referred to these men as their “eyes and ears,” regarding what
was going on at the various jobsites. The Morales brothers
typically each visit two to three jobsites per day and visit each
site at least once a week. However, since they may have from 8
to 20 jobsites at any one time, they must rely on the foremen to
report to them any problems on the sites. Normally, a foreman
will call the office near the end of each workday and report to a
superintendent on absences, production progress, and material
needs. The foremen are given combined radios/cell phones for
ease of communication with the office. It is important to note
that these are very much “working” foremen, expected to install
as much, or more, insulation as the other men on the crew.
Additionally, they are expected to see that the job runs
smoothly.
While on a jobsite, a foreman does have the authority to as-
sign each member of the crew specific work duties, that being
the area the employee is to insulate. Further, a foreman will
reassign members of the crew to new insulation duties, as the
need requires at the particular jobsite. Foremen do not have the
authority to transfer employees from one jobsite to another. I
do not believe that this “assignment” of work duties truly in-
volves the exercise of independent judgment, as the crewmem-
bers are all insulators and they would either begin work at one
area or another. All the foreman is doing is providing some
order and coordination to what would otherwise be a random
selection. Also, while there was some testimony that “wrap-
ping duct” is the least desirable type of insulation work, the
vast majority of the testimony was that installers are expected
to perform every type of insulation necessary on a particular
job. Accordingly, I do not believe that assignment by foremen
of duct wrap, or any other type of insulation, to crewmembers
rises to the exercise of independent judgment, or is anything
other than routine.
Foremen are expected to report problems on the jobsite to
one of the Morales brothers. They are not authorized or ex-
pected to resolve problems in anything other than an informal
way. If a foreman notices that a member of the crew is having
a problem of some type, he would normally inquire as to the
nature of the problem and whether there is some assistance he
can render the employee. However, any significant problem
with attendance, production, attitude or behavior must be re-
ferred by the foreman to a superintendent. This is done ver-
bally, in the course of the daily communication between fore-
man and superintendent. The foremen normally do not prepare
written reports concerning the performance of installers.
It is the General Counsel’s burden to establish that Antonio
Galvan is a supervisor within the meaning of the Act. The
Board has long held that the burden of establishing that an indi-
vidual is a statutory supervisor is to be borne by the party as-
serting such status. The Supreme Court approved the Board’s
evidentiary allocation in its paramount decision on the subject
of supervisory status in NLRB v. Kentucky River Community
Care, 532 U.S. 706, 710–712 (2001). I am of the view that the
General Counsel has failed to meet his burden.
Section 2(11) of the Act reads as follows:

The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.

It is well established that the enumerated functions in Section
2(11) are to be read in the disjunctive, and the existence of any
of them, regardless of the frequency of their performance is
sufficient to confer supervisory status. NLRB v. Yeshiva Univ.,
444 U.S. 672 (1980); Queen Mary, 317 NLRB 1303 (1995);
and Allen Services Co., 314 NLRB 1060 (1994). However, in
my opinion, Antonio Galvan does not independently exercise
any of the indicia of supervisory authority listed above. In
reality, he is simply a working leadman or foreman who merely
makes a routine assignment of work. His duties include routine
direction and assistance in relation to other employees, which
duties do not rise to the level of supervisory authority. See
Lampi LLC, 322 NLRB 502 (1996); Shen Lincoln-Mercury-
Mitsubishi, 321 NLRB 586, 594 (1996). While employees on a
jobsite may come to Galvan with work-related questions, the
record establishes that they are at liberty to by pass their fore-
man and go directly to the Morales brothers with their ques-
tions or concerns.
Also, while not dispositive, it is significant to note that fore-
men have the same benefits as other installers. Although most
of the foremen have more experience than the other installers
and are paid more for that reason, they get no extra pay simply
because they are “in charge” of a job. Foremen do not attend
managerial meetings with the Skaggs and the Morales brothers.
Further, the fact that a different foreman may have told an in-
staller that he was the “boss,” in no way supports an objective
conclusion that foremen possess any of the indicia of supervi-
sory authority.5 It is not the individual’s title or opinion of
himself which determines whether he is a supervisor, but,
rather, his job duties. Winco Petroleum Co., 241 NLRB 1118,
1122 (1979), enfd. 668 F.2d 973 (8th Cir. 1982). Under the
circumstances of this case, I conclude that Antonio Galvan is
not a supervisor as defined in the Act.
Counsel for the General Counsel contends in his post-
hearing brief that even if Antonio Galvan is determined not to
be a supervisor, he is still an agent of the Respondent within the
meaning of Section 2(13) of the Act. I disagree. As counsel
notes, the Board applies common law principles of agency

5 Forman Lazaro Campos testified that he had told installer Juan
Carlos Haro that he was the “boss” on the job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
when examining whether an employee is an agent of his em-
ployer. Agency may be based on either actual or apparent au-
thority to act for an employer. Apparent authority will results
from a manifestation by the employer to a third party, such as
an employee, which creates a reasonable basis for the employee
to believe that the employer authorized the action of the alleged
agent. The determination is whether under the circumstances,
the employee would reasonably believe that the alleged agent
was acting on behalf of management when he took the action in
question. Shen Lincoln-Mercury-Mitsubishi, Inc., supra at 593;
Roskin Brothers, Inc., 274 NLRB 413, 421 (1985). Further, the
Board has held that an employer may also be responsible for an
alleged agent’s action if that person is held out to employees as
a “conduit” for the transmission of information from the em-
ployer to its employees. Cooper Hand Tools, 328 NLRB 145
(1999); Hausner Hard-Chrome of KY, Inc., 326 NLRB 426,
428 (1998).
However, under the facts of this case, I see no evidence that
the Respondent was holding out its foremen, including Antonio
Galvan, to the other employees as its agents. A reasonable
employee should have perceived his foreman as another in-
staller with the same or greater individual production responsi-
bility as the other members of the crew. The reporting by the
foremen of the status of the jobs to management did not consti-
tute the transmission of information from the Respondent to its
employees. While the foremen carried radio/cell phones for
communication with the superintendents, these were for the
most part intended for the reporting of job status information.
The foremen would occasionally report employee problems to
management over the radio/cell phones, however, there was
significant testimony that employees were able to use the fore-
men’s phones while on the job to communicate directly with
the Morales brothers. Similarly, the superintendents could call
on a foreman’s phone, and then talk directly with any employee
working on a crew. Also, an installer who needed to contact
the jobsite was able to call the cell phone numbers for his fore-
man. These communications are unlike those where the Board
concluded an employer was using the alleged agent as a “con-
duit” to directly transmit information from management to
employees.
I do not believe that the Respondent placed its foremen in
such a position that it would have been reasonable for the in-
stallers to conclude that the foremen were agents of the Re-
spondent. From all the circumstances of this case, it appears
that the installers viewed the foremen as simply other installers
with the added responsibility of doing what they could to have
the job run smoothly. I also see no evidence that Antonio
Galvan held himself out as an agent of the Respondent, or as
anything other than an experienced installer with certain job
status reporting responsibilities. Accordingly, I conclude that
Galvan is not an agent of the Respondent as defined in the Act.
According to the testimony of Fred Morales, the Respondent
normally only knows a day or two in advance the number of
insulators it will need on a particular new project. If it cannot
staff the project by moving existing employees, the Respondent
will initially attempt to “rehire” former employees who were
previously released because of an economic reduction-in-force.
Both the Morales brothers indicated that it is not difficult for
them to contact former employees who were good workers and
offer them an opportunity to return to the Employer. They do
not keep any kind of formal list of names and telephone num-
bers, but, rather, just rely on personnel records and family con-
tacts to get in touch with former workers. Both Morales broth-
ers testified that it is normally not a problem to find former
employees who are very anxious to return to work with the
Respondent. However, on those occasions when former em-
ployees are not available, the Respondent relies on references
from existing employees to hire “new” employees. According
to Fred and Albert Morales, the rehire of former employees,
and the hiring of new employees who are recommended by
existing employees gives the Respondent a stable, dependable,
productive work force.
Further, only rarely will the Respondent find it necessary to
hire employees “off the street,” meaning someone who came to
the office to apply without having previously worked for the
Respondent or having a reference from a current employee.
According to the Morales brothers, the Respondent does not
have a formal application process, and individuals seeking
work are not permitted to fill out an application that is kept on
file. Most of the time there is no work available, applicants are
so informed, and told whether there may be something avail-
able in the future and, if so, to check back. Work for applicants
“off the street” is available so seldom that the Respondent has a
semipermanent sign on the gate in the chain link fence at its
warehouse office location that states, “Not Hiring.” (R. Exh.
6.) It is only during those rare, brief periods of time when the
Respondent is actively seeking to hire an individual “off the
street” that it covers the sign on its gate. It was the testimony
of the Morales brothers that job openings only existed for very
brief periods of time, and Fred Morales could not recall any
installer who had actually been hired “off the street” during his
2-1/2 years as a superintendent.
It is appropriate to note at this point that in general, I found
both Fred and Albert Morales to be highly credible witnesses.
They each testified in a calm, deliberate fashion and without
rancor, exaggeration, or embellishment. I was particularly
impressed with their ability to recall events, and their testimony
held up well under cross-examination. They impressed me as
genuine and sincere young men. The testimony of both men
was inherently consistent, and in both instances it had “the ring
of authenticity.”
Juan Carlos Haro and Jaime Haro were previous employees
of the Respondent, having originally been recommended for
employment by their father, who was at the time an employee
of the Respondent. The Respondent originally employed them
in approximately February and March of 2002, after which they
were laid off. In June, the Haro brothers and Fred Morales had
a number of telephone conversations about them returning to
work for the Respondent. According to the testimony of Fred
Morales, he knew approximately 1 week in advance, which was
unusual, that a new project was to begin and, so, he contacted
the Haros and asked them to come to the office on Friday, June
14, and talk about starting work. On that date both Haros ap-
peared, accompanied by a third individual that Fred Morales
did not know. This individual identified himself as Ricardo
Lopez and the Haros indicated that he was their “friend.” Lo-
QUALITY MECHANICAL INSULATION, INC. 803
pez told Morales that he had experience as an installer and was
looking for a job. Morales testified that he had a project start-
ing the next day, which was larger than he had anticipated, and,
so, he decided to rehire both Haros, who had been good work-
ers, and to hire Lopez, who he felt the Haros had recommended
by bringing him to the office and referring to him as their
friend. All three men were hired and told to report to the DHL
project the following day, Saturday.
The next day, Saturday, June 15, Fred Morales went to the
jobsite to check on the progress of the three men. Morales
testified that their “production was great,” and that he was
“shocked” and “impressed” with the excellent job Ricardo Lo-
pez was doing. So impressed that Morales decided to give
Lopez a $1 an-hour raise. Fred Morales candidly testified that
thereafter, on Monday, June 17, he received a call from Anto-
nio Galvan, who at the time was a former installer who had
been laid off.6 Galvan informed Morales that the three men he
had recently hired were affiliated with the Union. Morales
understood that Galvan was referring to the Haros and Lopez,
and he testified that he told Galvan that it did not matter
whether they “were with the Union,” as he had checked on
them on Saturday and “they were doing an excellent job . . .
their production was great.”
It is undisputed that the Respondent’s payroll week ends on
Tuesday. The Haros and Richardo Lopez had been hired on a
Friday, after which Fred Morales had told them on a number of
occasions that they needed to come into the office and fill out
their employment paper work by Tuesday at the latest, so that
they could be paid for the first workweek. According to
Morales, that was the reason why he had the three men report to
the office on Tuesday, June 18, which he testified was unre-
lated to his having learned the men were affiliated with the
Union. Morales claims he was unconcerned that the men may
have been union supporters, and that all he cared about was the
quality of their work.7
In any event, on the morning of Tuesday, June 18, the Haro
brothers and the man known to the Respondent as Ricardo Lo-
pez arrived at the warehouse office to complete the payroll
paperwork. In the office were the Morales Brothers and Ray
Skaggs. The Respondent’s supervisors were unaware at the
time that Lopez was secretly tape recording the conversation.
(R. Exh. 21.)8 The conversation began with Albert Morales
asking each man for his “I.D. and social security card.” Fol-

6 Subsequently, Galvan was rehired on July 3 as a foreman.
7 It should be noted that according to the testimony of Jaime Haro,
Morales also visited the jobsite on Monday, June 17, at which time he
was so happy with the progress of the job that he let the three men
leave at 10 a.m. and paid them for a full 8 hours of work. This appar-
ently occurred after the phone call from Galvan when Morales learned
the men were affiliated with the Union, which phone call Morales
testified took place at about 8 or 8:30 a.m.
8 Transcripts of the taped conversation were prepared by the Re-
spondent (R. Exh. 20a) and by the General Counsel (R. Exh. 20b), and
both versions were admitted into evidence. The tape recording is
somewhat difficult to hear and there are differences between the two
versions. However, I have listened to the tape a number of times, and I
believe that, for the most part, the Respondent’s version is more accu-
rate.
lowing some general conversation, Fred Morales, who had
apparently been handed Lopez’ documents said, “Hey, brother,9
this ain’t under Ricardo.” Lopez responded, “Yea, I used an
alias name to get hired because if I would have used my name I
probably wouldn’t get hired.” Fred Morales replied, “ I got it
under Ricardo Lopez, that’s the name that you have given me.”
Albert Morales interjected, “We’re going to have some prob-
lems on that bro.” Fred Morales asked,” Do you have any I.D.
that says Ricardo Lopez?” Lopez replied, “No, that is my true
identity right there.” However, it is unclear to me what identi-
fication Lopez was referring to. Fred Morales told Lopez,
“We’re definitely going to have, . . . I don’t know if that’s go-
ing to work bro.” At which point the Respondent’s supervisors
decide they should talk with Lopez in private and, so, they
asked the Haros to leave the room.
After the departure of the Haros and in response to a ques-
tion as to whether his real name was Ricardo, Lopez responded,
“No, it’s Miguel Aguilar.10 I am the union organizer for Local
73. You guys probably heard of me.” There followed a discus-
sion as to why Aguilar was using an alias during which Fred
Morales said, “We are going to have problems there. I thought
we hired Ricardo Lopez, so we didn’t hire another guy under
this name, that’s for sure. Why would you give us an alias
name?” To which Aguilar responded, “Cause I know if I
would have given you guys Miguel Aguilar, would you guys
have hired me?”
The conversation went on for several minutes as Aguilar
continued to insist that he used an alias because the Respondent
had “already heard his name” and would not have hired him if
they knew his real identity. Fred Morales indicated that he had
heard the name Miguel Aguilar, but there were a lot of people
with that name. It then became apparent that the Respondent
was not going to allow Aguilar to fill out the necessary paper-
work, as Ray Skaggs indicated that Aguilar had “lied” to them,
and Fred Morales said, “[W]e just don’t have nothing for you
right now bro. Not like this.”
During the conversation there was a good deal of what I
would characterize as “friendly banter” about the merits of
union versus nonunion labor. Late in the conversation, Aguilar
made the statement, “Actually, I know a lot of labor law.” He
informed the supervisors that, “My intentions were to organize
Quality.” There was some additional friendly conversation
about Ray Skaggs’ relationship with the Union, and whether he
knew certain individuals associated with the Union.11
As the conversation was nearing its end, Aguilar indicated
that if allowed to do so, he would go back to work. Fred
Morales told him that, “We need someone to work. I don’t
need someone to talk all day.” Fred asked him, “What’s with
9 It should be explained that Fred Morales has the habit of referring
to people he is addressing as “brother.” This became obvious when he
testified at the hearing.
10 For the remainder of this decision, I will use the name Miguel
Aguilar, when referring to the person previously identified as Ricardo
Lopez.
11 Ray Skaggs was a longtime union member and official, who had
“retired” with a union pension.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
this shirt that says Union yes? What is that all about?”12 Albert
Morales stated, “I don’t even know what he was wearing (inau-
dible). I don’t care if you are Union or not, if you wanted to
work, and then come in with that.”
Fred Morales made it clear the Respondent was not going to
continue to employee Aguilar, telling him, “If you see Ricardo,
I would like to talk to him. I don’t know what else to say. I
don’t have nothing for you at this time.” Ray Skaggs referred
to Aguilar as a “pathological liar” who had “falsified” his iden-
tity. There was then some discussion about whether Aguilar
could be paid for the work he had performed under the name of
Ricardo Lopez. Ray Skaggs indicated, as he had earlier, that
the Respondent’s attorney would have to decide whether or not
Aguilar would be paid.13 The conversation then finally ended
with the parties exchanging pleasantries.
As I noted earlier, there are some differences between the
Respondent’s transcript of the taped conversation and that of
the General Counsel, which differences I resolved generally in
favor of the Respondent. For example, the General Counsel’s
version indicates that Aguilar showed the supervisors his “un-
ion business card.” While he may well have done so, the tape
does not record any mention of this business card. (GC Exh.
3.) Also, in the General Counsel’s transcript Fred Morales tells
Aguilar “no” in response to a question from Aguilar as to
whether the Respondent would have hired him if he had ini-
tially given his real name. The Respondent’s transcript con-
tains no such response, and I failed to hear it when I listened to
the tape. Further, I heard various remarks from Ray Skaggs
about Aguilar having engaged in “misrepresentation,” which
remarks were reflected on the Respondent’s transcript, but not
on that of the General Counsel. Finally, the Respondent’s ver-
sion reflects Albert Morales telling Aguilar that he would not
have cared if Aguilar was with the Union or not. While I
clearly heard this statement on the tape, it is not found on the
General Counsel’s transcript.
At this point it is appropriate to note that the General Coun-
sel’s transcript was apparently prepared by Miguel Aguilar,
who was, of course, the person who surreptitiously recorded the
conversation. I believe that in preparing the transcript, he has
taken certain “liberties” with what is recorded on the tape. His
intentions being to place himself in the best possible light,
while making the Respondent’s supervisors appear as malevo-
lent as possible. For the most part, I did not find Miguel Agui-
lar to be a credible witness. To begin with, he was willing to
falsify his identity in order to achieve his initial goal of being
hired. While his ultimate objective in attempting to organize
the Respondent’s employees was certainly legitimate, and ob-
viously lawful, his use of an alias was not legitimate.
Further, I found Aguilar’s testimony to be inconsistent, in-
herently improbable, and generally incredible and unworthy of
belief. His testimony regarding the point during his meeting

12 It is unclear whether Aguilar was wearing this shirt earlier that
morning at work, or put it on just prior to entering the office.
13 Subsequently, Aguilar was paid for the work he performed under
the name of Antonio Lopez. However, Aguilar was paid only after he
filed a complaint with the State of Arizona Labor Board. (See R. Exh.
1 and 2.)
with the supervisors when he allegedly gave them his union
business card is not supported by the affidavit that he gave to
the General Counsel during the investigation of this case. (See
R. Exh. 23.) After further cross-examination, he incredibly
testified that the reason the tape recording of the meeting did
not reflect the events as he testified to them was because the
various participants at the meeting were talking over each
other. Also, his testimony is at variance with other witnesses
whom I find credible. Such is the case with installer Jacinto
Fajardo, whose testimony regarding his confrontation with
Aguilar, I will set forth in detail later in this decision.
Finally, I found Aguilar’s demeanor while testifying to leave
much to be desired. He appeared nervous, uncomfortable and
on edge, more so than would be natural for someone testifying
in a Board proceeding. When being cross-examined, he be-
came testy and argumentative. All in all, his testimony did not
instill me with confidence that he was telling the truth. To the
contrary, I have concluded that he was not credible.
Regarding the matter of credibility, at this point I should note
that in general, I did not find the testimony of either Jaime or
Juan Carlos Haro to be particularly credible. To begin with,
both men testified that prior to June 14 they had never heard
Miguel Aguilar referred to as Ricardo Lopez, and they did not
know that he was going to use an alias in attempting to get a
job with the Respondent. This I find totally implausible, as the
Haro’s were obviously involved with Aguilar and the Union in
the organized efforts to place union “salts”14 with the Respon-
dent. Further, as will become apparent later in this decision,
other witnesses who I found credible frequently disputed the
Haros’ testimony. Also, the Haro brothers’ testimony was of-
ten confusing and inconsistent, and some of it was inherently
implausible. Their demeanor when testifying, especially on
cross-examination, tended to be antagonistic, and they did ap-
pear to have an “attitude.” Over all, their testimony did not
appear genuine and truthful.
The day following the discharge of Miguel Aguilar,
Wednesday, June 19, Fred Morales went to a jobsite where he
had a conversation with the two Haro brothers. The Haros and
Morales testified at significant variance regarding that conver-
sation. Although as noted above, I generally found the Haro
brothers not to be credible, I do believe their testimony that
Morales started the conversation by asking them if they knew
Miguel Aguilar, whether they knew that he was affiliated with
the Union, and whether they were also involved with the Un-
ion. It is logical that Fred Morales would have asked them such
questions, since they had introduced Aguilar to him as their
friend on June 14, and they had been asked to leave the office
on June 18 before there was any discussion about the Union.
Morales would certainly have been curious about what they
knew of the Union’s interest in the Respondent.
At some point in the conversation, the Haros told Fred
Morales that they had each paid the Union $60, but that they
were uncertain as to whether that meant that they were union
members or not. There followed a conversation about whether
14 Individuals hired as employees who have as an object attempting
to organize an employer’s employees are customarily referred to as
union “salts.”
QUALITY MECHANICAL INSULATION, INC. 805
the Haros might have a “problem” with the Union, if in fact
they were members. While it is unclear who first mentioned a
possible “problem,” I believe that the testimony of Fred
Morales was credible when he testified that the reference to a
“problem” was in the context of a problem with the Union, not
with the Employer, as testified to by the Haros. This makes
sense, as Morales further told the Haros that while he did not
know the answer to the question, he knew somebody who did,
and he would get back to them.15 Further, I believe that the
testimony from the Haro brothers that Morales told them not to
talk with Aguilar or to take any “papers” from him is likely
accurate. From his conversation with the Haros, Morales was
of the impression that they were really not involved with Agui-
lar in an effort to organize the Employer. As he had just fired
Aguilar, it is logical that Morales would have wanted the Haros
to avoid Aguilar and, accordingly, I believe that he made the
statement advising them to do so.
Later that day, June 19, Fred Morales called Jaime Haro at
his home. Morales informed Jaime Haro that he had spoken to
Ray Skaggs, as promised. Morales said that according to
Skaggs, the Haros could not have joined the Union for only
$60, and that what they must have done was pay a permit fee,
which would allow them to be referred to work out of the union
hiring hall. Further, Skaggs indicated that under those circum-
stances, the Union would not be able to punish the Haro broth-
ers for working for the Respondent, a nonunion contractor.
According to Jaime Harro, after Morales reported what Skaggs
had to say, Morales repeated what he had said earlier that day,
namely that the Haros should not talk with nor take any papers
from Miguel Aguilar. Once again, for the reasons I previously
stated, I believe that this conversation about Aguilar likely
occurred in the manner testified to by Jaime Haro.
On the afternoon of June 21, an employee meeting was held
at the Respondent’s warehouse. According to the testimony of
Fred Morales, he and his brother made the decision to call this
meeting because of information they had received that Miguel
Aguilar had threatened installer Jacinto Fajardo. As noted
above, I found Fajardo to be a credible witness. He testified in
a mild, unassuming way, and impressed me with the genuine-
ness of his testimony. He did not appear to be exaggerating or
embellishing his testimony. Rather, he seemed shy and some-
what reluctant to tell his story. I do not believe that there was
any reason for him not to be truthful. Fajardo’s testimony was
strongly disputed by Miguel Aguilar, who I have found to be an
incredible, unreliable witness.
According to Fajardo, one evening in June as he and his wife
were leaving home to do their wash, Miguel Aguilar arrived at
his house.16 Aguilar told Fajardo that he had something impor-
tant to tell him. He was not dissuaded by the fact that Fajardo
said he was too busy to talk. Aguilar said that he had “called
Immigration,” and that “they were going to show up Monday

15 This reference was to Ray Skaggs who, as a former union member
and officer, had some knowledge regarding the Union’s ability to disci-
pline its members for working for a nonunion contractor, such as the
Respondent.
16 This was apparently not the first time that Aguilar had come to Fa-
jardo’s home to visit and talk about the union organizational campaign.
morning at the warehouse.” Further, Aguilar told Fajardo that
he wanted Fajardo to “work with him,” and that “nothing was
going to happen with them.” While Fajardo is not the most
articulate of witnesses, and he testified in a somewhat cryptic
fashion, it appears that Aguilar, who had been trying to get
Fajardo to quit the Respondent and affiliate with the Union,
was informing him that the Immigration and Naturalization
Service (INS) would be making raids at the Respondent’s
warehouse facility and jobsites. Aguilar was warning Fajardo,
and offering him the opportunity to affiliate with the Union,
which allegedly would protect him from the INS. According to
Fajardo, he was scared that he might lose his job, and so he
mentioned what had happened to fellow employees Carlos
Sanchez and Estavan (Steve) Leyva.17
Leyva informed Fred Morales about Fajardo’s concerns, and
Fred, in consultation with his brother, decided that an employee
meeting needed to be called. The Morales brothers testified
that there is a significant fear of the INS in the Hispanic com-
munity and, the Respondent’s work force being comprised of
almost all Hispanics, they decided to address the concerns at an
employee meeting. Fred and Albert Morales presided over the
meeting, at which approximately 30 employees were present. It
should be noted that there are essentially two versions of what
transpired at the meeting. The Haros have one version, and
virtually all the other witnesses who testified have another ver-
sion. For the reasons enumerated earlier, I did not find the
Haro’s credible and, so, unless indicated otherwise, the version
of events set forth is a composite of the testimony of the other
witnesses who were present for the meeting.18
The meeting was started by Fred Morales, who explained
that there had been a threat made by Miguel Aguilar to contact
the INS and have them come to various worksites on Monday
and check the work authorization papers of the Respondent’s
installers. Morales called upon Jacinto Fajardo to tell his story,
and Fajardo recited the incident when Aguilar arrived at his
home. Morales told the employees not to worry, as all their
work authorization papers were in order. Further, he indicated
that there was no way that the Union could protect them any
more than the Respondent could. If an employee wanted to
leave the Employer and affiliate with the Union, he was cer-
tainly free to do so. However, any such employee should un-
derstand that a new employee might then fill his job and, there-
fore, if things did not work out and the employee wanted to
return to the Respondent, there might not be a job to return to.
The consensus of the witnesses was that, contrary to the tes-
timony of the Haros, Fred Morales did not tell the employees
that they could not talk with Miguel Aguilar, or other union
organizers, while on a jobsite. Employees were not instructed
17 Both Sanchez and Leyva were credible witnesses who testified
about their conversations with Fajardo and added some of the details he
had given them, which details Fajardo had for some reason not men-
tioned when he testified. Leyva was a particularly credible witness as
at the time of the hearing, he was no longer employed by the Respon-
dent but, rather, at Wal-Mart. He obviously had no reason to color his
testimony one way or another.
18 These employees include the Morales brothers, Carlos Sanchez,
Estevan Leyva, Jacinto Fajardo, Lazaro Campos, Alberto Montes,
Javier Gonzales, and Ricardo Gonzales.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
not to talk about the Union while at work. Further, there was
no statement made to the employees that they could not receive
union pamphlets or other union material while at work. Also,
nothing was said about employees being fired because they
affiliated with the Union. I believe that the Haros were either
not paying attention to what was being said, or they are relying
on “selective memory” of what was said at the meeting. They
may have simply recalled what Fred Morales told them on June
19, rather than what Morales said to the assembled employees
on June 21. It is interesting to note that they actually remember
very little of what was said by Jacinto Fajardo at the meeting,
although clearly his presentation was a significant part of the
meeting. However, they claim to recall in much detail what
Fred Morales allegedly said, although the other employees who
were present dispute most of their recollection.19
However, the area in which all agree is that Fred Morales did
make a comment about paying employees for bringing him a
body part from Miguel Aguilar. Morales admits making such a
statement, but contends that it was merely a joke, and under-
stood as such by the assembled employees, who all shared a
good laugh. The employees at the meeting seem to disagree as
to specifically what body parts were mentioned, or how many
times they were mentioned. Also, the Haros do not character-
izes the comment as being made in jest, although most of the
other employees do. To the extent that the Haros also suggest
that Fred Morales made a similar offer to reward employees
who cut off a body part of any other employee engaging in
union activity, I conclude that no such threat was made. Cer-
tainly, no other employee present at the meeting testified that
such a statement was made. Finally, no other employee sup-
ported the testimony of the Harlos that Fred Morales disparaged
the Union in any way, including making a statement that the
Union had cheated the Haro brothers out of $60 dollars each.
The Haros continued to work for the Respondent until they
were discharged on July 26. There is much controversy regard-
ing the events leading up to their discharges. According to the
testimony of Jaime Haro, on July 8 he and his brother were
working at a jobsite at the Supai Elementary School. To that
date, the Haros had always worked together. Allegedly, fore-
man Antonio Galvan approached Jamie Haro and asked him
whether he, his brother or his father, Francisco Haro, were
members of the Union. Galvan is also alleged to have ques-
tioned Jamie about why Miguel Aguilar was fired. Jamie Haro
claims that he told Galvan that he and his brother were mem-
bers of the Union, but that his father was only a union sup-
porter. Thereafter, Juan Carlos was moved to a different job-
site. It is Jamie Haro’s contention that the next day, July 9,
Galvan told him that he was not doing his job and that since he
was from the Union he had “to work and prove that he can
work.” Galvan then allegedly assigned him an amount of work
for the day that no installer could complete in a single day.

19 To some extent, it is not surprising there was a significant dispar-
ity between the recollections of the various witnesses to the events of
June 21. It appears that the meeting was held in an atmosphere of
much levity, with employees carrying on a number of separate conver-
sations at the same time, and much laughter and general noise. In that
respect, it is fortunate there was any general consensus among most of
the employees as to the substance of what was discussed.
This included ductwork, which Jamie Haro claims is arduous
and is usually performed by beginning installers. Jamie Haro
further contends that Galvan promised him that he could work
as normal, if he would end his support for the Union. It is
claimed that Galvan went so far as to threaten that Jamie would
get beaten up if he continued to try and organize the Respon-
dent’s employees.
Antonio Galvan denied treating Jaime Haro any differently be-
cause he supported the Union. According to Galvan, beginning
on July 9, Jaime’s work production fell to unacceptably low lev-
els. He claims to have spoken repeatedly to Jaime about his lack
of production. It was Galvan’s testimony that Jaime installed less
than one half the amount of roll insulation that should have been
installed by an insulator with his experience. According to
Galvan, Jaime’s response was simply that, “he couldn’t do any
more.” On July 11, Jaime’s production was so low that Galvan
moved him to another part of the jobsite where the work was
easier, but Jaime’s production remained very low. His response
to Galvan’s continued inquiry as to why the production was so
low was, “you can’t get anything more out of me.” Also, Jaime
informed Galvan that, “being at work for eight hours was
enough.” The two men had a number of discussions about duct
wrap, with Jaime complaining that he should not have to perform
that type of work, and Galvan telling Jaime that an “able in-
staller” has to be able to install every type of insulation required
on a jobsite. Galvan testified that the only time the Union was
mentioned was when Jaime informed him that, “ I can work Un-
ion, and I can work Quality Mechanical right now, and Quality
can’t do anything about it.” Jaime continued to install rolls of
insulation at less than half the expected rate and on July 12
Galvan again spoke to him about the problem. Jaime’s response
was, “being eight hours on the ladders was enough.” Galvan,
who had seen Jaime work before this alleged slow down in pro-
duction, testified that he knew that Jaime could perform at a
much higher level.
As noted earlier, I have concluded that Antonio Galvan was
neither a supervisor nor an agent of the Respondent as defined by
the Act. Accordingly, alleged statements made by Galvan about
Jaime Haro’s union activity would not be attributable to the Re-
spondent. However, even assuming that Galvan was a supervisor
or agent, I am of the view that no statements were made by
Galvan as could be considered to have interfered with, restrained,
or coerced Jaime Haro in the exercise of his Section 7 rights. As
I have indicated, I found Jaime Haro to be a generally incredible
witness. I do not believe that Galvan interrogated Jaime about
his union membership. After all, it is undisputed that on ap-
proximately June 17, Galvan informed Fred Morales that
Morales had just hired three union supporters, meaning Miguel
Aguilar and the Haros. As Galvan knew about the Haros’ union
affiliation, he would have had no reason to ask such a question.
Further, I believe that Galvan testified in a credible fashion. I
believe that he was concerned with Jaime Haro’s lack of produc-
tion beginning about July 9. In my view, his conversations with
Jaime were unrelated to Jaime’s union activity. On the other
hand, it appears that it was Jaime who tried to connect the
amount of insulation that he was installing with his affiliation
with the Union. Also, I do not believe that Galvan threatened
Jaime with physical harm, reprisals, or discharge. I see no credi-
QUALITY MECHANICAL INSULATION, INC. 807
ble evidence that Galvan separated the Haro brothers because of
either brother’s union activity, or gave Jaime more onerous work-
ing conditions, or increased his workload. The weight of the
evidence strongly supports Galvan’s contention that every insula-
tor was expected to install duct wrap, not simply beginning insu-
lators. After reviewing the credible evidence, it is clear to me
that the only problem that existed between Jaime Haro and Anto-
nio Galvan was caused by Jaime’s sudden lack of production
beginning about July 9, and his refusal to offer a reasonable ex-
planation for the decline in production.
It is the Respondent’s contention that the Haros had been
good employees when they first worked for the Employer in the
fall of 2002, and continued to do good work when they were
rehired on June 14. However, according to the Respondent’s
witnesses, beginning about July 9, the Haros’ production was
dramatically reduced and their attitudes became hostile. In
addition to Antonio Galvan, other foremen also began to have
problems with the Haros. On July 15, Ernesto Arias Montes
was in charge of a crew that included Jaime Haro. According
to Montes, Jaime was only installing about half as much insula-
tion as the other members of the crew. Montes spoke with
Jaime about his poor production, and Jaime responded that, “he
was the Union, he could do whatever he wanted.” Montes testi-
fied that Jaime’s production also remained very low the follow-
ing day. I find no reason not to credit the testimony of Montes.
Jaime Haro’s testimony that his production was equal to that of
other employees, and that he was given more difficult work to
perform than others, seems no more credible than the rest of his
testimony.
On July 19, Albert (Peely) Montes was in charge of a crew
that included Jaime Haro. That day Haro was assigned to insu-
late fan coils. He finished two fan coils, which Montes testified
was less than half the number expected of an installer with his
experience. I believe that Montes has testified credibly.
Lazaro Campos was another one of the Respondent’s fore-
men who testified at the hearing. He was in charge of a crew
on which Juan Carlos Haro worked for about 2 weeks, starting
approximately July 10. Regarding Juan Carlos’ production,
Campos testified that, “He wasn’t doing hardly anything com-
pared to the other guys.” On that first day Campos asked Juan
Carlos why he was “moving so slow?” Haro replied, “If I’d
pay him more, he’d work faster.” Later Haro told Campos,
“This ain’t by contract, that if it’s by contract he’d move
faster.” By this remark Campos assumed that Haro was asking
to be paid “by the foot,” which was contrary to the method used
by the Respondent to compensate installers, that being an
hourly rate. Haro mentioned calling Fred Morales to ask him
about compensation, at which suggestion Campos decided to
call Morales on the spot. With Haro standing there, Campos
called Morales and told him that Juan Carlos “was moving too
slow and he didn’t really want to do anything.” At Morales’
request, Campos handed the phone to Haro. However, follow-
ing the conversation between Morales and Haro, there was no
improvement in his production.
In addition to low production, Campos noticed that Juan Car-
los was not stapling the tape used to patch up holes in the insu-
lation and join together rolls of insulation. This was standard
operating procedure for the Respondent, but Haro told Campos
that he did not know to do this without being told. Campos
asked Haro to go back and place staples where he had neglected
to do so. Also, according to Campos, Juan Carlos was working
very inefficiently. Instead of cutting a number of pieces of
insulation all at one time, he would make a separate trip up and
down the ladder to cut insulation each time he needed another
piece. In the opinion of Campos, Juan Carlos “was just eating
up the clock.” On the following day, July 11, Juan Carlos’
production remained at about half of what the other installers
were doing.
Campos testified that on July 12, Juan Carlos did not show
up for work until 9 a.m., although the normal starting time in
the summer was 5:30 a.m. According to Campos, he had told
Haro the previous day which jobsite to report to, yet Haro
claimed he had been sent to the wrong project. In the view of
Campos, even if Haro had mistakenly gone to the wrong pro-
ject, it should not have taken him 3-1/2 hours to locate the right
jobsite. Later that day the two men had a confrontation. Cam-
pos testified that near the end of the workday, he told Haro
where Haro would be working the following day. Campos
asked Haro if he heard him and Juan Carlos said he did. How-
ever, Juan Carlos walked up to Campos, and according to
Campos, “He got in my face and he goes that’s the last time
you scream at me because you don’t know who I am.” Compos
claimed that Haro said those words “with an attitude,” standing
about six or eight inches from his face. Further, for the re-
mainder of the workday, Haro allegedly kept “running his
mouth,” and according to Campos, said, “that I wasn’t noth-
ing.”
Campos again worked with Juan Carlos Haro on July 17 and
18, when his production continued to be very low. On July 18
Campos spoke with Juan Carlos a number of times about his
production. On one of those occasions Juan Carlos told Cam-
pos, “to do it myself, not to worry about it.” According to
Compos, Haro made the remark in, “just an angry tone, pissed
off.” The following day, July 19, Haro’s production was once
again very low, and the work that he did was “sloppy.”
Compos testified that Juan Carlos was cutting holes in the insu-
lation that were too big, requiring large amounts of tape to
close, and that he was cutting pieces of insulation too long,
requiring that the overlap be cut off. This was a waste of mate-
rial. Compos characterized Haro’s work as “ugly.”
As I have found with the other foremen, I am of the opinion
that Lazaro Campos has testified credibly. His testimony
seemed sincere and genuine, and it was internally consistent and
inherently probable. It had “the ring of authenticity” to it. Fur-
ther, as has been noted in detail, I found Juan Carlos Haro to be
an incredible witness. Having found both the Haros to be in-
credible, I do not credit their denials regarding the charge of low
production. Further, I am of the view that they both repeatedly
demonstrated their poor attitudes toward the Respondent in the
period from July 8th to the end of their employment.
The foremen having reported their problems with the Haro
brothers, the Respondent’s managers decided to begin to docu-
ment these incidents. Once they were prepared to act, the Re-
spondent’s managers decided to confront the Haros with their
concerns and obtain the Haros’ position on the various inci-
dents. Management prepared documents entitled “Notice of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
Charges,” one addressed to each of the Haros, which were
dated July 22 for Juan Carlos (GC Exh. 5), and July 26 for
Jaime (GC Exh. 7). The documents were provided to the Haros
in both English and Spanish. After an earlier unsuccessful
attempt, the “charges” were presented to the Haro brothers on
July 26. A meeting was conducted at the Respondent’s ware-
house office, with the Morales brothers and Ray Skaggs present
for management.20 The Haros were told that they were being
paid for their time, and that they were expected to read and
respond to the charges. They were provided with forms to use
in responding to each charge being made against them. Fur-
ther, they were told that if they failed to respond to the charges,
it would be assumed that the claims being made against them
were true, and they could be discharged.
The Haros refused to respond to the charges, and they simply
asked for their final checks. They testified that they declined to
answer the charges because the charges were nothing but “lies.”
The Respondent subsequently issued written “Termination of
Employment” notices to both Haros that were dated July 27.
(GC Exh. 4.)21 It was the testimony of the Respondent’s man-
agers that the Haros were fired because of their low production
and poor attitude as set forth in the “Notice of Charges” docu-
ments, which charges management considered as undenied
since the Haros refused to respond. Further, it is the Respon-
dent’s position that by refusing to respond to the charges and
requesting their final checks, the Haros were voluntarily “aban-
doning” their jobs. However, after hearing the testimony of the
Respondent’s managers, Skaggs and the Morales brothers, it is
clear to me that the principal reason given by the Respondent
for discharging the Haros was low production and a poor atti-
tude from approximately July 8 until the end of their employ-
ment. Of course, it is the General Counsel’s position that the
Haros were fired because of their union activity, and any other
reason stated by the Respondent was merely a pretext.
The complaint alleges that between an unspecified date in
June and July 26, a number of union affiliated individuals ap-
plied for employment with the Respondent, none of whom were
hired.22 The General Counsel contends that the Respondent
failed to consider for hire or to hire these individuals because of
their union affiliation. The Respondent contends that any fail-
ure to hire or to consider hiring was because the Respondent
either had no job opening at the time in question, or because the

20 This meeting was tape recorded by Ray Skaggs. The tape is in
evidence as R. Exh. 24. (It also contains other conversations recorded
the same day.) A transcript of the recording prepared by the Respon-
dent is in evidence as R. Exh. 25a, and a transcript prepared by the
General Counsel is in evidence as R. Exh. 25b. There is no dispute as
to what was discussed at this meeting.
21 Inadvertently, there are two termination letters in evidence for
Juan Carlos Haro and none for Jaime Haro. However, this is of no
practical importance as it is the Respondent’s stated position that the
Haros were both fired for the reasons listed in the documents entitled
“Notice of Charges,” which are in evidence, one for each brother.
22 In his posthearing brief, counsel for the General Counsel makes
reference to employee-applicants who sought employment with the
Respondent on various dates prior to June. As the complaint does not
allege violations of the Act prior to June, I am assuming that any refer-
ence to earlier events is intended as background information only.
Respondent was able to fill the positions using its priority hir-
ing system.
Ruben Aguilar, a union member, testified that sometime in
June he and his brother, Leo Aguilar, went to apply for work at
the Respondent’s warehouse office. Leo wore a union T-shirt.
The men allegedly spoke with Albert Morales who informed
them that the Respondent was not hiring. Aguilar testified that,
thereafter, he would call the Respondent’s office two or three
times a week, and was always told the Respondent was not
hiring. The Respondent does deny that Aguilar may have
sought a job with it. However, it is the Respondent’s stated
position that if Aguilar was told that the Respondent was not
hiring, it was because that was true at the point that he sought
employment.
Union member Jorge Olivera testified that in June or July he
went alone to apply for work with the Respondent. He was
wearing regular clothes and spoke with Albert Morales about a
job. Allegedly, Morales indicated that while there were at the
time no openings, he should return in 2 weeks. Again, the Re-
spondent does not deny that Olivera may have sought employ-
ment, however, the Respondent does deny that there was any
job opening at the time he applied.
Olivera testified that he returned to the Respondent’s ware-
house on July 26 in the company of union members Solomon
Franco and Rafael Martinez. The men were all wearing clothes
bearing union insignias. As they got out of Franco’s van, they
were immediately approached by Ray Skaggs and Albert
Morales who informed them they were trespassing. Olivera
testified that although he tried to explain that he had been told
by Albert Morales to return and determine if work was avail-
able, Skaggs said that they were trespassing and that if they did
not leave, he would call the police. Olivera alleges that Skaggs
said, “They were taking any body that wasn’t from the Union.”
Albert Morales began to take pictures of the three men, who
left after being told to do so. They claim not to have seen any
“No Trespassing” or “Not Hiring” signs as they entered the
Respondent’s property.
The Respondent does not deny the substance of these events
of July 26 as testified to by the General Counsel’s witnesses,
with the exception that the Respondent’s witnesses, Skaggs and
the Morales brothers, do not acknowledge any reference by
Skaggs to the Union. However, the Respondent takes the posi-
tion that the incident testified to by Olivera must be placed in
context. The Respondent contends that its private property was
under assault on July 26 by union organizers, masquerading as
applicants for employment. There were three separate groups of
men who descended on the Respondent’s property on July 26 in
rapid succession, at a time the Respondent had set aside to dis-
cuss with the Haros their continued employment with the Em-
ployer. Further, the Respondent contends that it was not hiring
at the time, and had posted its property with a number of “No
Trespassing” signs and had its semipermanent “Not Hiring” sign
on display. However, despite their attempt to maintain the pri-
vacy of the property, the Respondent’s witness contend that they
found themselves under, what they believe was, a coordinated
campaign by the Union to disrupt their business operation. As
evidence of this campaign, the Respondent’s counsel during
cross-examination obtained the admission from a number of the
QUALITY MECHANICAL INSULATION, INC. 809
employee-applicants that on the morning of July 26, they all met
with Union Organizer Miguel Aguilar at a local Denny’s restau-
rant prior to appearing in three groups at the Respondent’s
warehouse. The incident with Olivera, Franco, and Martinez
mentioned above was actually the last of the three to have oc-
curred on July 26.
Union member Jose Fred Sanchez testified that on July 1, he
and fellow union member Bruce Annis went to the Respon-
dent’s warehouse to apply for work. They were both wearing
clothing with the union insignia. According to Sanchez, he
asked Fred Morales for a job application and whether the Re-
spondent was hiring. Allegedly, Morales informed them that
although the Respondent was not hiring at the time, he would
take down their names and phone numbers. However, they
were never called.
The Respondent does not deny that these two men may have
asked about employment. However, it is the Respondent’s
position that any failure to hire them was based on either the
lack of job openings at the time they applied, or the fact that
employment needs were satisfied by means of the Employer’s
priority hiring system. The Respondent denies that union
membership or affiliation had any affect on any of its hiring
decisions.
Sanchez also testified that on the morning of July 12, he and
Bruce Annis returned to the Respondent, this time accompanied
by union members Richard Chamberlain and Ron Harger, to
seek employment. They were all wearing union paraphernalia.
Nobody was present at the warehouse, but as they started to
leave, a truck drove into the lot and driver Preston Dale Kelly
asked them what they wanted. The men asked Kelly if the
Respondent was hiring, after which Kelly responded by asking
them if they had not seen the “Not Hiring” sign. Kelly walked
the men over to the fence around the property, which allegedly
had an “Employees Only” sign on it, but nothing about not
hiring. According to Sanchez, Kelly then got on his radio and
spoke with a “superintendent.”23 Kelly is heard to say, “Hey,
we’ve got some more of these union guys that want to look for
work here.” Sanchez claims that the response was, “Tell them
we don’t have any.” Chamberlain’s testimony is somewhat
different. He claims that Kelly called “somebody” on the radio,
and asked if the Employer was hiring. According to Chamber-
lain, the voice on the other end asked, “Are they Union?”
Kelly responded in the affirmative, at which the unidentified
voice allegedly said, “I don’t have any work for union guys.”
The men then left the property.
According to the testimony of driver Dale Kelly, when he
went to the fence with the job seekers and saw that the “Not
Hiring” sign was missing, he called superintendent Fred
Morales to inquire if the Employer was hiring. Morales told
him the Respondent was not hiring, and after he so informed
the men, they left the property. Both Kelly and Morales deny
that any mention was made of the Union. Further, the Respon-
dent continues to take the position that if job seekers were told
that no jobs were available, then that was the situation at the
time that they asked about work. The Respondent contends that

23 The witness does not indicate how he knew this was a superinten-
dent.
union membership or affiliation were not factors in deciding
whether or not to hire candidates for employment.
Regarding the incident of July 12, to the extent that it is nec-
essary to resolve the variance in the witness testimony, I credit
the testimony of Kelly and Morales that union membership or
affiliation was not discussed. As I noted earlier, I found Fred
Morales in particular to be a credible witness. Kelly supports
his testimony. Further, Sanchez and Chamberlain have some-
what different remembrances of what was said. Significantly,
the other witness to testify about this incident, Ron Harder,
apparently did not hear any comments by Kelly or the person
on the radio about the Union or union members. Finally, I find
it very difficult to believe that an intelligent individual like Fred
Morales would make such a statement on an open radio, with
union members obviously in the immediate vicinity.
Trini Castaneda, union member, testified that he and Jose
Flores, also a union member, went to the Respondent’s ware-
house in mid-June to apply for work. However, Flores places
the date as July 26. Based on Flores’ testimony, plus that of the
Respondent’s witnesses, as well as certain photographs in evi-
dence, I place the incident as having occurred on July 26. Ac-
cording to Castaneda, he and Flores had originally gone to the
Respondent seeking employment in mid-May, at which time
Fred Morales had told them there were no openings, but they
should try again in 2 weeks.24 Both men returned on July 26
wearing union T-shirts. Allegedly, they did not even get a
chance to get out of their truck, as they were approached by
three men who immediately began yelling at them to leave
because they were trespassing. One of the three men is alleged
to have said that if they did not leave, the police would be
called, while another of the men began to take pictures of them
and their truck. Castaneda testified that one of the three men
pointed toward the fence around the property, but that he did
not see a “No Trespassing” sign. Not being given the opportu-
nity to speak, and being concerned that the police would be
called, Castaneda and Flores left the facility.
It is the testimony of the Respondent’s three witness, Ray
Skaggs and the Morales brothers, that this was the first of the
three groups of union organizers to descend on them on the
morning of July 26. As mentioned above, they considered this
as an intentional effort to disrupt the Respondent’s business
operation. It is the contention of the Respondent that it had no
job openings on that date and it had, therefore, posted its prop-
erty with “No Trespassing” signs and displayed its semi-
permanent “Not Hiring” sign. As the Respondent’s managers
felt that their property was under assault, and their business was
being deliberately disrupted, they attempted to get the union
organizers off the property as quickly as possible. To that end,
they informed the union members that they were trespassing
and that unless they left immediately, the police would be
called. In an effort to have evidence of the incident if the need
arose, pictures were taken of the union men and their vehicle.
24 As the complaint does not allege any incidents in May, it is as-
sumed that this event is not being alleged as a violation of the Act.
This is apparently because the men were not wearing any union insig-
nias, and there is no contention that the Respondent was aware at the
time that they were union members.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
The second of the three incidents that occurred on July 26
appears to be the most significant of the three. It occurred
shortly after the Haros had departed the facility, when Miguel
Aguilar and Harold Hamman, another union member, arrived
allegedly seeking employment. According to Aguilar, as soon
as they pulled into the Respondent’s parking lot in Hamman’s
truck, Ray Skaggs and the Morales brothers came running to-
ward them. Albert Morales was taking pictures of them and the
truck, while Skaggs was carrying a tape recorder. Unknown to
the Respondent’s managers, Aguilar was also taping the inci-
dent, but surreptitiously. Aguilar asked if he could have his job
back. However, it is unclear whether the supervisors heard him
as Skaggs, in a loud voice and rapid fashion, repeatedly tells
Aguilar and Hamman that they are trespassing, and that unless
they leave immediately the police will be called. Hamman
apparently got out of his truck, but did not get the opportunity
to say anything. It appears that the police were actually called,
at which point the two union men decided to leave. They drove
away in Hamman’s truck with Aguilar allegedly making a
comment to Skaggs about his ownership of the business. Both
Aguilar and Hamman deny seeing any “No Trespassing” or
“Not Hiring” signs. They contend that they were merely on the
property to apply for work.
As noted, the Respondent contends that this was simply a
further attempt by the Union on July 26 to disrupt its business.
Having allegedly posted the property with “No Trespassing”
and “Not Hiring” signs, the managers contend that Aguilar and
Hamman had no legitimate reason to be on the property. It is
the opinion of Ray Skaggs that Hamman was Aguilar’s “en-
forcer” and was on the property to attempt to intimidate him.
Hamman is a large man, considerably younger, and in better
physical shape than Skaggs, who is in his mid-60s. According
to Skaggs, Hamman approached him in a threatening manner,
and he was fearful for his physical safety. Also, Skaggs con-
tends that after calling the police, and as the two union men
were leaving the facility, Aguilar said to him, “I’m going to kill
your ass.” In fact, both the police and the paramedics arrived at
the facility, and both filed reports, which are in evidence. (R.
Exhs. 26 and 27.) Ray Skaggs, with an elevated blood pres-
sure, subsequently left work early in the company of his wife.
As I have mentioned, the events of July 26 have all been tape
recorded. Ray Skaggs recorded the meeting with the Haro
brothers, as well as the three separate visits by union affiliated
job seekers. According to Skaggs, he had the tape recorder
available because it was his intention to record the meeting
with the Haros. He decided to use the recorder to make a re-
cord of the actions of the union affiliated men because he was
of the belief they were violating the law by trespassing, at a
time when the Respondent was clearly not hiring. Skaggs indi-
cated that for the same reason, the Respondent’s managers
decided to take pictures of those people they considered tres-
passers. The Respondent’s tape recording of the events of July
26 was admitted into evidence. (R. Exh. 24.) Also admitted
into evidence was a transcript of that tape recording prepared
by counsel for the Respondent (R. Exh. 25a), and a transcript of
the same recording prepared by counsel for the General Coun-
sel. (R. Exh. 25b.) Further, as was noted earlier, Miguel Agui-
lar secretly tape recorded his confrontation with Skaggs and the
Morales brothers on July 26. That tape recording was admitted
into evidence. (GC Exh. 15.) Also admitted into evidence was
a transcript of that tape recording prepared by the Union (GC
Exh. 16), and a transcript of the same recording prepared by
counsel for the Respondent. (R. Exh. 22.)
In their posthearing briefs, the parties have engaged in a
“battle of the tapes and transcripts” to support their various
positions and theories. I have listened to each tape a number of
times and reviewed the transcripts, comparing the transcripts to
the actual recordings. It is not surprising that the various tran-
scripts are at variance, as the tape recordings were made in less
than ideal conditions, and sound quality varies greatly, depend-
ing upon the distance of the speaker to the receiving device.
Also, individuals are often speaking at the same time, making it
difficult, if not impossible, to determine exactly what was said.
Portions of conversations are often inaudible. That being said,
most of the conversations are understandable. A listener to the
tapes is certainly able to get the “flavor” of the various conver-
sations. Further, there really is not a great difference in the
conflicting transcripts submitted by the parties, and I do not
believe that those differences that do exist are over material
matters.
Following my review of the tapes of the three incidents when
union affiliated individuals came to the Respondent’s facility
on July 26, I believe that some matters are obvious. Although I
could find no direct mention made of the Union, I have no
doubt that Skaggs and the Morales brothers were aware that all
the “visitors” to the facility were affiliated with the Union.
Further, I have no doubt that they were also aware that these
“visitors” had the intention of seeking employment. Having
posted the property with “No Trespassing” and “Not Hiring”
signs, the Respondent’s managers were clearly unhappy to find
that, despite their best efforts, they had a steady stream of “ap-
plicants for employment.” The “employee-applicants” were
attempting to ask the Respondent’s managers for jobs, and the
managers were intent on immediately informing the applicants
that they were trespassing, needed to leave, and were subject to
arrest if they did not do so. It is obvious from the tapes that
Skaggs and the Morales brothers did not want to hear anything
the applicants had to say but, rather, were determined to order
them off the property.
Specifically regarding the confrontation between the Re-
spondent’s managers and Miguel Aguilar and Harold Hamman,
there is nothing on either tape as would reflect Aguilar making
any threat to Ray Skaggs. The tape recorded by Miguel Agui-
lar does end with a question by Aguilar to Skaggs, regarding
whether Skaggs owns the business. However, I cannot deter-
mine if Aguilar added this question after the incident, to hide a
deleted threat by Aguilar to Skaggs, which is a claim made by
counsel for the Respondent at the hearing and in his post-
hearing brief. In any event, I do not believe that even if Aguilar
made the threat to Skaggs, “I’ll kill your ass,” that it would in
any way alter the outcome of this case. Any such threat by
Aguilar would have been made at the end of the conversation,
and after Skaggs had repeatedly ordered Aguilar off the prop-
erty as a trespasser. Finally, I would note that Harold Hamman
is heard to say nothing on either tape. Therefore, it is not pos-
QUALITY MECHANICAL INSULATION, INC. 811
sible to determine from the tapes whether he menaced Ray
Skaggs in any way, as is alleged by Skaggs.
2. Failure to hire or consider for hire employee-applicants
In Wayne Erecting, Inc., 333 NLRB 1212 (2001), the Board
citing FES, 331 NLRB 9 (2000), set forth a framework to ana-
lyze refusal-to-consider and refusal-to-hire allegations. The
Board stated in Wayne Erecting, Inc., that in order to establish a
discriminatory refusal-to-consider violation under FES, the
General Counsel must show: (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. In order to establish a discriminatory refusal-to-
hire violation, the General Counsel must establish: (1) that the
respondent was hiring, or had concrete plans to hire, at the time
of the alleged unlawful conduct; (2) that the applicants had
experience or training relevant to the announced or generally
known requirements of the positions for hire; and (3) that anti-
union animus contributed to the decision not to hire the appli-
cants. Once the General Counsel has met his initial burden for
the refusal-to-consider and refusal-to-hire, respectively, the
burden shifts to the respondent to show that it would not have
considered or hired, respectively, the applicants even in the
absence of their union activity or affiliation.
In the complaint before me, the General Counsel has alleged
that on various dates in June and July, the Respondent failed
and refused to hire or to consider for hire employee-applicants
Jose Trinidad Castaneda, Jose Flores, Solomon Franco, Rafael
Martinez, Ruben Aguilar, Miguel Aguilar,25 Jorge Olivera,
Bruce Annis, Fred Sanchez, Richard Chamberlain, Ron Harger,
and Harold Hamman. There is no dispute that each of these
men was a member of the Union, and they all had significant
experience in the insulation industry as installers. The testi-
mony and other evidence established as much, and the Respon-
dent never offered rebutting evidence. Further, I conclude that
on the date each of them appeared at the Respondent’s ware-
house to apply for employment, as alleged in the complaint,
that the Respondent was aware that they were affiliated with
the Union. The Respondent does not really deny knowledge of
union affiliation, merely that it was not a factor that the Re-
spondent considered.
Ray Skaggs testified that the Respondent hired installers in
March, April, May, June, and July 2002. Fred Morales testified
that the Respondent hired installers in June and July. There is
no dispute, and the Respondent’s payroll records establish, that
a number of installers were hired, or “re-hired,” in the months
of June and July. (GC Exh. 8.) Those are the months when it
is alleged in the complaint that the Respondent failed and re-
fused to hire or consider union affiliated applicants. The Re-
spondent does not contend that it considered any of these indi-
viduals for employment, alleging that under its priority hiring

25 While the complaint does not specifically allege the Respondent’s
refusal-to-hire or refusal-to-consider Miguel Aguilar on July 26, it is
clear that the issue was fully litigated at the hearing, and both counsel
for the General Counsel and counsel for the Respondent discussed the
matter in their respective briefs. Therefore, I consider this issue before
me for decision.
system, there would have been no vacancies at the time these
union affiliated applicants sought employment.
The only issue remaining in dispute, which the General
Counsel must establish in order to show a prima facie case of
an unlawful refusal-to-hire or refusal-to-consider, is the matter
of union animus by the Respondent. While the Respondent
denies that it exhibited any animus toward the Union, I con-
clude that the evidence establishes otherwise. As will become
apparent later in this decision, I have found that the Respondent
engaged in significant violations of Section 8(a)(1) of the Act.
These included the interrogation of employees regarding their
union affiliation, creating the impression of surveillance of
employees’ union activity, prohibiting employees from interact-
ing with union organizers, offering money to employees who
harmed a union organizer, threatening employee-applicants
with trespassing, and to summon the police because of their
union affiliation, and by photographing employee-applicants
because of their union affiliation.
In my view, the General Counsel has met his burden, and has
established a prima facie case in support of both the refusal-to-
hire and the refusal-to-consider allegations in the complaint.
However, the burden of proof then shifting to the Respondent, I
conclude the Respondent has met its burden and established
that it would not have hired or considered for hire the employ-
ees named in the complaint, even in the absence of their union
affiliation. The Respondent’s managers all testified about the
priority hiring system utilized in staffing projects. This testi-
mony remained largely unrebutted by the General Counsel.
Fred Morales testified that the system has been in place for at
least the 7 years that he has been employed by the Respondent.
As was described earlier in detail, the Respondent’s priority
hiring system first attempts to utilize existing employees who
can be moved to correct staffing imbalances on its projects.
Where this cannot be accomplished, the Respondent will con-
tact former employees who were previously laid off because of
an economic reduction-in-force. Fred Morales testified that the
Respondent usually has no difficulty in obtaining additional
insulators by “rehiring” these individuals. However, when this
“recall” is inadequate, the Respondent will seek to hire new
employees who have been recommended by existing employ-
ees. Using this method, the Respondent is able to staff its pro-
jects with a stable, dependable, and productive work force.
According to Fred Morales, it is very rare that the Respon-
dent would need to hire a new employee who had not been
recommended by an existing employee. So rare in fact, that the
Respondent has a semipermanent sign on its warehouse gate
that reads “Not Hiring,” which is very seldom covered over.
Morales testified that he could not recall anyone that the Re-
spondent had simply hired “off the street,” meaning without a
recommendation from an existing employee. The Respon-
dent’s managers testified that the Respondent employs insula-
tors with varying degrees of experience, from none to many
years at the craft. Counsel for the General Counsel closely
cross-examined Fred Morales regarding this issue. However,
Morales’ testimony remained consistent, that being that while
the Respondent sometimes hires new employees with no ex-
perience, those new employees have always been recom-
mended by existing employees. Numerous examples were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
given by Morales in response to counsel for the General Coun-
sel’s questions.
The Respondent’s managers indicated that because of the
method the Respondent uses in hiring employees, it has no
formal application process and does not take “job applications”
from those individuals seeking employment. The Morales
brothers testified that when an individual seeking work appears
at the warehouse office, he is told what the present employment
situation is like, and usually that means that there is no work
available. Allegedly, vacancies do not last very long and the
Respondent has no difficulty in finding employees, either “re-
hired” former employees or “new” employees hired with rec-
ommendations from existing employees. It is the Respondent’s
position that those employee-applicants named in the complaint
who appeared at its facility asking for work prior to July 26
were told that the Respondent was not hiring, because at the
time they sought employment that was the situation. There
were no jobs available. Regarding the events of July 26, it is
the Respondent’s position that it was under a coordinated as-
sault intended to obstruct its normal business operation. For
that reason, it contends that it advised those it considered tres-
passers to leave its property. However, it is apparently still the
Respondent’s position that there were no job vacancies on that
date either and, so, it would not have considered or hired the
“employee-applicants,” under any circumstances.
Counsel for the General Counsel was not able to point to a
single employee who was hired during the period set forth in
the complaint without having been recommended by an exist-
ing employee or having previously worked for the Respondent.
As noted, I found the Morales brothers to be generally credible,
and I believe their testimony regarding the priority hiring sys-
tem utilized by the Respondent. This type of a priority hiring
system has been found by the Board not to be a violation of the
Act, as it constitutes a nondiscriminatory method for an em-
ployer to attempt to gather a dependable, stable, and productive
work force. Under existing Board law, the Respondent’s hiring
policy designed to give preference to former employees and
those employee-applicants being recommend by existing em-
ployees is a legitimate practice. Brandt Construction Co., 336
NLRB 733 (2001), petition for review denied IUOE Local 150,
325 F.3d 818 (7th Cir. 2003); and Zurn/N.E.P.C.O., 329 NLRB
484 (1999).
Based on the above, I conclude that the Respondent has met
its burden of proof and established that it would not have hired
or considered for hire the union affiliated applicants for em-
ployment named in the complaint, even in the absence of their
union affiliation. Accordingly, I find that the Respondent’s
conduct did not violate Section 8(a)(1) and (3) of the Act.
Therefore, I shall recommend that complaint paragraphs 6(a),
(b), (d), (e), (f), (g), (h), (i), (m), (n), (q), and (r) be dismissed.
3. Alleged unlawful conduct by Fred Morales on June 19
The complaint alleges in paragraph 5 that Superintendent
Fred Morales engaged in a number of instances of unlawful
conduct on June 19 in violation of Section 8(a)(1) of the Act.
These instances involve Morales’ conversations with the Haro
brothers following the discharge of Miguel Aguilar. As was
noted above in detail, although I find the Haros in general not
to be credible, I do believe their version of the events of June
19. As such, I conclude that the morning following Aguilar’s
discharge, Morales questioned the Haros on a jobsite about
whether they knew Miguel Aguilar, if they knew that he was
affiliated with the Union, and whether they were also involved
with the Union. Morales would have been naturally curious
about the Haros’ relationship with Aguilar, who they had pre-
viously described as their “friend,” and about what they knew
of the Union and its interest in the Respondent.
The Board looks to the “totality of the circumstances” in de-
termining whether a supervisor’s questions to an employee
about his union activities were coercive under the Act. Ross-
more House, 269 NLRB 1176 (1984), affd. sub nom. In Med-
care Associates, Inc., 330 NLRB 935 (2000), the Board listed a
number of factors considered in determining whether alleged
interrogations under Rossmore House were coercive. These are
referred to as “Bourne factors,” so named because they were
first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964). These factors include the background of the parties’
relationship, the nature of the information sought, the identity
of the questioner, the place and method of interrogation, and
the truthfulness of the reply.
In the case at hand, the Haros were recently rehired employ-
ees, whose “friend,” Miguel Aguilar, had been fired only the
day before. They had reason to be concerned. The information
sought was their knowledge of and participation in union activ-
ity, specifically an attempt to organize the Respondent. Obvi-
ously, this was rather sensitive information, about which they
had reason to believe the Respondent might take adverse action
against them. The questioner was Fred Morales, the Respon-
dent’s superintendent and the Haros’ immediate supervisor.
Morales apparently questioned the Haros on a jobsite away
from any other employees. This must have conveyed a certain
importance of these matters to the brothers. The Haros were
not entirely truthful with Morales, apparently because they
feared if he learned the extent of their union affiliation and
activity, he might take action against them. In my opinion,
these were reasonable beliefs on the part of the Haros.
Further, I believe that this conversation continued with
Morales cautioning the Haros not to talk with or accept any
“papers” from Miguel Aguilar. This warning was repeated
later in the day when Morales called Jaime Haro at his home to
give him some information about the Union that he had ob-
tained from Ray Skaggs. Accordingly, I believe that the total-
ity of circumstances establish that the interrogation by Fred
Morales of Jaime and Juan Carlos Haro had a reasonable ten-
dency to restrain, coerce, or interfere with these employees’
Section 7 rights.
Based on the above, I find that the Respondent violated Sec-
tion 8(a)(1) of the Act by the conduct of Fred Morales on June
19, as alleged in complaint paragraphs 5(a)(1), (2), (3), (4), and
(5). This included the unlawful interrogation of employees,
creating the impression among its employees that their union
activities were under surveillance,26 threatening them with un-

26 The Board considers that an employer has created the impression
of surveillance when under all the circumstances, an employer’s state-
ments and actions would convey to employees the message that their
QUALITY MECHANICAL INSULATION, INC. 813
specified reprisals if they engaged in union activities with Mi-
guel Aguilar, and by promulgating an overly broad and dis-
criminatory rule prohibiting employees from speaking with
Union Organizer Aguilar, or from receiving literature from
him.27
4. Alleged unlawful conduct by Fred Morales on June 21
The complaint alleges in paragraphs 5(a)(6) and (7) and
5(b)(1) through 5(b)(6) that Fred Morales engaged in a number
of instances of unlawful conduct on June 21 in violation of
Section 8(a)(1) of the Act. It is my understanding of the Gen-
eral Counsel’s case that these alleged violations of the Act all
occurred at the general meeting for employees held at the Re-
spondent’s warehouse office on June 21. As is set forth in de-
tail above, this was the meeting the Respondent’s managers
called in order to address the concerns of certain of its employ-
ees about threats regarding the INS made by Miguel Aguilar to
Jacinto Fajardo the evening before. As noted earlier, I con-
cluded that Fajardo testified credibly, and that Aguilar had in
fact made the threats attributed to him. Also, as noted above, I
found the version of the meeting as testified to by the Haro
brothers to be largely exaggerated and embellished. For the
most part, I rejected the testimony of the Haros and accepted
the testimony of other witness whom I found credible, and who
tended to testify similarly about the substance of the meeting.
Certainly, the weight of the evidence was heavily against the
version of events as testified to by the Haros.
As also discussed above, Fred Morales admits making a ref-
erence at the meeting to paying employees for bringing him a
body part from Miguel Aguilar. Morales contends that he was
only joking and that the assembled employees all understood
that this was just a joke, as was allegedly evidenced by the
laughter at the meeting when he made the remark. Having
listened to Morales testify at length and observing his de-
meanor, I have no doubt that he was only joking when he made
the remark. I also think it likely that at least most of the em-
ployees understood that he was joking. Fred Morales appar-
ently has a personality that lends itself to levity, even during
stressful situations. Never the less, the statement was made by
a supervisor to a large group of employees offering money in
exchange for someone causing physical harm to a known union
organizer. Beyond doubt, such a statement would have the
affect of interfering with, restraining, and coercing employees
in the exercise of their Section 7 rights. As such, the Respon-
dent has violated Section 8(a)(1) of the Act as alleged in com-
plaint paragraph 5(b)(6).
In no other instance did I find that Fred Morales committed a
violation of the Act when he addressed the meeting of employ-
ees on June 21. I have concluded either that the statements

union activities were being closely monitored. United Refrigerated
Services, 325 NLRB 36 (1998); Savers, 337 NLRB 1039 (2002);
Wayne J. Griffin Electric, 335 NLRB 1362 (2001).
27 It is axiomatic that an employer who tells employees not to talk
with or receive any “papers” from a union organizer is both specifically
promulgating an overly broad and discriminatory rule against engaging
in union activity, and generally interfering with, restraining, and coerc-
ing employees in the exercise of their Section 7 rights. Our Way, Inc.,
268 NLRB 394 (1983).
attributed to him by the Haros were never made, or at a mini-
mum, there is insufficient credible evidence that such state-
ments were made. Certainly the weight of the witness testi-
mony, as set forth above, strongly supports a conclusion that
the alleged statements were never made. However, regarding
the allegation that Morales “disparaged” the Union, complaint
paragraph (5)(b)(4), I would note that even if Morales made the
statement attributed to him, he is, in my opinion, protected by
Section 8(c) of the Act. This allegation of the complaint con-
cerns the Haros’ contention that Morales told the employees
that the Union had cheated them out of $60 each. Although I
am not convinced that Morales made any such statement, if he
did so it would constitute an expression of his opinion, which
was not totally unreasonable in view of the fact that the Haros
had told him they had given the Union $60 each, and did not
seem to know what the money was for. Therefore, I believe
that any such statement would not constitute a violation of the
Act.
Accordingly, based on the above, I shall recommend the
dismissal of complaint paragraphs 5(a)(6) and (7) and 5(b)(1)
through 5(b)(5).28
5. Threatening employee-applicants with arrest
and photographing them
Complaint paragraphs 5(c)(1) and (2) allege that in June and
on July 26, Ray Skaggs threatened employee-applicants with
trespassing and to summon the police and photographed them,
because of their union activity. However, the evidence, includ-
ing the testimony of almost all the witnesses, establishes that
these events all occurred on July 26, at the Respondent’s ware-
house office. The events of that date have been set forth in
detail earlier in this decision. By way of summary, July 26 was
the date that the Haro brothers met with Skaggs and the
Morales brothers, which meeting ultimately led to their termi-
nation. It was also the date when three separate groups of un-
ion affiliated employee-applicants appeared at the Respon-
dent’s facility. As I have indicated above, the evidence is clear
that the Respondent’s managers knew at the time of these
events that these “employee-applicants” were affiliated with the
Union.
The weight of the credible evidence establishes that as of
July 26, the Respondent had posted its property with a number
of “No Trespassing” signs, and also that the Respondent’s
semipermanent “Not Hiring” sign was on display. I believe
that the “employee-applicants” who testified that they did not
see these signs were, at best, disingenuous. The signs, photo-
graphs of which are in evidence, were prominently posted. (R.
Exhs. 4–7.) If the employee-applicants did not see the signs, it
is only because they did not want to see them. Further, it is
clear that the “visits” by these three groups of men were being
coordinated, as many of the “employee-applicants” testified
28 It should be noted that admitted into evidence is a memo dated
July 1, 1999, from Mike Skaggs to all employees. (GC Exh. 6.) On its
face, this document appears to be an overly broad no-solicitation, no-
distribution rule. However, it is not alleged as a violation of the Act in
the complaint, and counsel for the General Counsel does not raise the
matter in his posthearing brief. Accordingly, I consider that the issue is
not before me for adjudication.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
that they met with Miguel Aguilar early that morning at a local
Denny’s restaurant.
It is the Respondent’s position that its managers felt they
were under assault, and that there was a coordinated effort to
interfere with their normal business operation. As they had
posted the property with “No Trespassing” and “Not Hiring”
signs, it is the position of the Respondent that its managers had
the right to protect its property interest, and order the “trespass-
ers” off the facility, and to call the police if they refused to
leave. Ray Skaggs testified that he felt that the men were “tres-
passers” who were breaking the law, and that photographs were
taken of the men and their vehicles in order to have evidence of
the incident and to be able to identify the individuals involved.
(R. Exhs. 8–13.) According to Skaggs, he decided to tape re-
cord the incidents for the same reason. A tape recorder was
available because he had intended to use it to record the sched-
uled meeting with the Haro brothers. Further, Skaggs testified
that he was fearful the “trespassers” might cause him, or the
other managers, some type of physical harm. Specifically, he
was allegedly frightened that Harold Hamman, who he de-
scribed as an “enforcer,” might harm him. Allegedly, he was
so frightened and upset by Hamman’s presence that the para-
medics needed to be called to treat his high blood pressure. (R.
Exhs. 14, 15, 26.) Of the three separate incidents on July 26,
apparently this was the only one where the police were actually
called. (R. Exh. 27.)
The Respondent’s managers acknowledge that they do not
normally photograph or tape record applicants for employment
who appear at their facility to apply for work. Further, they
acknowledge that applicants do periodically appear at the
warehouse office facility seeking employment. Based on all
the credible evidence, I have no doubt that Skaggs and the
Morales brothers knew that the three groups of men who ap-
peared at the facility on July 26 were union-affiliated men who
intended to ask for employment. The various tape-recordings
establish beyond question that the Respondent’s managers were
determined to confront them with the threat of trespass before
the union men had a chance to speak, thus, effectively prevent-
ing them from asking for employment.
I am not at all convinced that the Respondent’s managers, of
which there were three, were genuinely fearful for their physi-
cal safety from the “employee-applicants.” Further, I believe
that Ray Skaggs was being highly “melodramatic” when he had
both the police and the paramedics called following the visit of
Miguel Aguilar and Harold Hamman. I am also not convinced
that the managers photographed the “employee-applicants” and
their vehicles in order to have proof of the incident. To the
contrary, I do not believe that the managers were genuinely
concerned about the alleged violation of the Respondent’s
property rights by the “trespassers.”
I am of the opinion that the issue of trespassing was simply a
ruse, intended to provide cover for the managers’ real interest,
which was to force the employee-applicants off the property
before they had a chance to ask for work.29 An objective re-

29 The matter of whether the employee-applicants were actually tres-
passing is not an issue the undersigned needs to decide. Under the facts
as presented, the Respondent was treating the individuals in question
view of the tape recordings establishes that the employee-
applicants were acting in a peaceful, nonconfrontational way
and were clearly attempting to apply for work. The Respon-
dent’s threatening of employee-applicants with trespassing and
to summon the police, as well as, the photographing of the men
and their vehicles, would reasonably have a chilling effect on
their Section 7 rights. The photographing would also have
given the employee-applicants reason to believe that they were
under surveillance because of their union affiliation.
Accordingly, based on the above, I conclude that the Re-
spondent’s actions of July 26 interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act, as alleged in paragraphs
5(c)(1)30 and (2) of the complaint.31
6. Alleged unlawful conduct by Antonio Galvan
Complaint paragraphs 5(d)(1) through 5(d)(7) allege that on
July 8 and 9, Antonio Galvan engaged in certain conduct in
violation of Section 8(a)(1) of the Act. Although not named in
these complaint paragraphs, it is clear from the evidence pre-
sented that the employees whose Section 7 rights were alleg-
edly interfered with, and who were restrained and coerced,
were the Haro brothers. Also, complaint paragraphs 6(j), 6(k),
and (6)(l) allege that on July 8 and 9, the Respondent isolated,
imposed more onerous working conditions on, and increased
the work load of, Jaime Haro, in violation of Section 8(a)(3) of
the Act. From the evidence presented, it is clear that Antonio
Galvan was the Respondents “supervisor” or “agent” alleged to
have taken this action against Jaime Haro, because of his union
activity.
The issue of Antonio Galvan’s alleged supervisory and
agency status has been discussed in detail earlier in this deci-
sion. As was noted, I concluded that Galvan was not a supervi-
sor or agent of the Respondent as defined in the Act. There-
fore, the Respondent is not responsible for the actions attributed
to Galvan. However, I also concluded that even if Galvan were
found to be a supervisor or agent, the conduct attributed to him
did not occur. For the reasons I previously gave, I found Jaime
and Juan Carlos Haro to be incredible, and Galvan impressed
me as a credible witness. I am of the belief, as set forth above
in detail, that Galvan made no statements to the Haros as could
be considered to have interfered with, restrained, or coerced
either of the Haros in the exercise of their Section 7 rights.
Also, again for the reasons previously expressed, I find no
credible evidence that Galvan imposed more onerous working
conditions on Jaime Haro, increased his workload, or isolated

differently than it had ever treated previous employee-applicants. I con-
clude that it did so for the sole purpose of attempting to prevent them
from applying for work because they were union affiliated employee-
applicants. See Waco, Inc., 273 NLRB 746 (1984); Captain Nemo’s, 258
NLRB 537 (1981); Indio Grocery Outlet, 323 NLRB 1138 (1997).
30 Although this complaint paragraph mentions “June,” I have con-
cluded that the Respondent’s unlawful conduct set forth in the para-
graph actually occurred on July 26.
31 This finding is not in conflict with my earlier conclusion that the
Respondent had rebutted the General Counsel’s prima facie case and
established that based on its priority hiring system, it would not have
hired or even considered for hire the employee-applicants named in the
complaint, even in the absence of their union affiliation.
QUALITY MECHANICAL INSULATION, INC. 815
him,32 as alleged in the complaint. In my opinion, there is no
question that Jaime Haro’s work production had become very
low, and there is no credible evidence that Galvan expected
Jaime to perform an amount or type of work not being per-
formed by the other insulators.
Accordingly, based on the above, I shall recommend that
complaint paragraphs 5(d)(1) through 5(d)(7), and 6(j), 6(k)
and 6(l) be dismissed.
7. The discharge of Manuel Aguilar
It is alleged in paragraph 6(c) of the complaint that on June
18, the Respondent discharged Manuel Aguilar because of his
union activity and affiliation. The events surrounding Aguilar’s
hiring and discharge are set forth above in detail. The Respon-
dent, of course, takes the position that Aguilar was discharged
because he lied to Fred Morales when hired and used an alias,
that of Ricardo Lopez.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or (1) turning on employer motiva-
tion. First, the General Counsel must make a prima facie show-
ing sufficient to support the inference that protected conduct
was a “motivating factor” in the employer’s decision. This
showing must be by a preponderance of the evidence. Then,
upon such a showing, the burden shifts to the employer to dem-
onstrate that the same action would have taken place even in
the absence of the protected conduct. The Board’s Wright Line
test was approved by the United States Supreme Court in NLRB
v. Transportation Corp., 462 U.S. 393 (1983).
In the matter before me, I conclude that the General Counsel
has made a prima facie showing that Miguel Aguilar’s union
activity and affiliation was a motivating factor in the Respon-
dent’s decision to terminate him. In Tracker Marine, 337
NLRB 644 (2002), the Board affirmed the administrative law
judge who evaluated the question of the employer’s motivation
under the framework established in Wright Line. Under that
framework, the General Counsel must establish four elements
by a preponderance of the evidence. First, the General Counsel
must show the existence of activity protected by the Act. Sec-
ond, the General Counsel must prove that the respondent was
aware that the employee had engaged in such activity. Third,
the General Counsel must show that the alleged discriminatee
suffered an adverse employment action. Fourth, the General
Counsel must establish a link, or nexus, between the em-
ployee’s protected activity and the adverse employment action.
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent bears the burden of show-
ing that the same action would have taken place even in the
absence of the protected conduct. See also Manno Electric,
321 NLRB 278, 280 fn. 12 (1996); Farmer Brothers Co., 303
NLRB 638, 649 (1991).
There is no doubt that Miguel Aguilar was engaged in sig-
nificant union activity. After all, he was the union agent as-

32 Concomitantly, there is no evidence that the Respondent isolated
Juan Carlos Haro.
signed to organize the Respondent’s employees. Apparently,
he decided after his initial efforts were not successful, to be-
come a “salt” and continue his organizing efforts from the “in-
side.” To this end, he obtained employment with the Respon-
dent on June 14. Of course, he obtained employment under the
name Richardo Lopez. Both before and after he was hired,
Aguilar spoke to a number of the Respondent’s employees
about the benefits of union representation. According to Agui-
lar, and other witnesses, these conversations took place both on
the Respondent’s jobsites and at the homes of a number of the
Respondents installers. Also, Aguilar had occasion to distrib-
ute to some of these employees a number of union pamphlets
and other union related literature. There also is no doubt that
the Respondent was aware of at least some of that union activ-
ity prior to discharging Aguilar. As Fred Morales candidly
admitted, Antonio Galvan informed him on June 17 that three
men he had just hired were affiliated with the Union. Morales
understood these men to be Lopez, a/k/a Aguilar, and the Haro
brothers. It also appears that when Aguilar entered the ware-
house office on June 18 to submit his payroll paperwork, he
was wearing a T-shirt that had inscribed on it, “Union, yes,” or
words to that effect. It seems obvious to me, that the Respon-
dent’s managers saw this shirt before they were faced with the
question of Lopez’ identity.
Certainly, Miguel Aguilar suffered an adverse employment
action. He was discharged on June 18, only 4 days after being
hired, and only 3 days after his work so impressed Fred
Morales that he was given a raise.
Regarding the question of whether there exists a link or
nexus between Aguilar’s union activity and his discharge by the
Respondent, I believe that the events of June 18 establish such
a connection. There were several comments by the Respon-
dent’s managers, which show that Aguilar’s union affiliation
was at least something that troubled them. The tape recordings
of that meeting reflect that Fred Morales told Aguilar, “We
need someone to work. I don’t need someone to talk all day.”
The only matter, which logically Fred Morales could have been
referring to, was Aguilar’s union activity. Further supporting
that conclusion was Fred Morales’ next question, “What’s with
this shirt that says Union Yes? What is that all about?” While
Albert Morales stated that, “I don’t care if you are Union or
not,” he also added, “[I]f you wanted to work and then come in
with that.” Again this was a reference to Aguilar’s T-shirt.
Also, as I have indicated earlier in this decision, I believe
there is evidence of antiunion animus on the part of the Re-
spondent. I have found that the Respondent’s managers com-
mitted significant violations of Section 8(a)(1) of the Act.
These included interrogation of employees’ union activities,
creating an impression among employees that their union ac-
tivities were under surveillance, promulgating an overly broad
and discriminatory rule prohibiting employees from speaking to
union organizers, and threatening employees with reprisals for
engaging in union activities. Also included are instances of the
Respondent’s managers photographing employee-applicants,
and threatening them with trespassing and to summon the po-
lice because they were engaged in union activities and were
affiliated with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
Based on all the above, I believe that the General Counsel
has met his burden of establishing that the Respondent’s action
in terminating Manuel Aguilar was motivated, at least in part,
by antiunion considerations. The burden now shifts to the Re-
spondent to show that it would have taken the same action ab-
sent the protected conduct. Senior Citizens Coordinating
Council of Riverbay Community, 330 NLRB 1100 (2000); Re-
gal Recycling, Inc., 329 NLRB 355 (1999). The Respondent
must persuade by a preponderance of the evidence. Peter Vi-
talie Co., 310 NLRB 865, 871 (1993). I am of the view that the
Respondent has met this burden.
Fred Morales candidly admitted that shortly after he hired
Aguilar, a/k/a Lopez, he learned from Antonio Galvan that
Aguilar and the Haros’ were affiliated with the Union. How-
ever, he testified that he did not care, allegedly telling Galvan
that it did not matter if they “were with the Union” as, “They
were doing an excellent job, . . . their production was great.” I
strongly suspect that this was in fact true. Having given Agui-
lar a raise his first day on the job, clearly Fred Morales was
pleased with Aguilar’s work. Apparently he was still pleased
with Aguilar on the morning of June 18 when Aguilar and the
Haros were told to come to the warehouse office and submit
their payroll paperwork. This, of course, was after Morales had
learned from Galvan of Aguilar’s union affiliation.
A review of the tape recordings for June 18 shows that ini-
tially the Respondent’s managers seem happy to see Aguilar
and the Haros. It is not until the man they knew as Ricardo
Lopez produced identification in the name of Miguel Aguilar
that the atmosphere at the meeting abruptly changed, and the
managers become less friendly and obviously concerned.
While Aguilar testified that he showed the managers his union
business card at the same time that they saw from his identifica-
tion that he was not Lopez, I heard no reference to his union
business card on the tapes. Rather, it appears to me that the
managers became immediately concerned upon learning that
the man standing before them was not who he had claimed to
be. It is Aguilar, not the managers, who interjects the Union
into the conversation, telling them that he is the union organ-
izer, and that if he had used his true name they never would
have hired him. The managers admit no such thing, with Fred
Morales asking Aguilar why he lied to them, and indicating that
the name Miguel Aguilar had no special meaning to him.
Ray Skaggs is heard on the tapes to refer to Aguilar as a
“pathological liar” and having engaged in “misrepresentation,”
and it is clear that the managers are telling Aguilar in no uncer-
tain terms that the Respondent will not allow him to continue as
an employee because he used an alias in obtaining his job. As
noted earlier, Albert Morales says at one point that he does not
care whether Aguilar is affiliated with the Union or not, al-
though this comment is somewhat contradicted by his reference
to the union T-shirt. For his part, Aguilar tries to be friendly,
making “small talk,” and apparently attempting to impress or
frighten the managers by telling them that, “Actually, I know a
lot of labor law.”33 The managers are noticeably more serious
than when Aguilar initially entered the office, although, to

33 It appears that Miguel Aguilar does not know as much labor law
as he believes.
some extent, they attempt to respondent pleasantly to Aguilar’s
banter.
As I explained in detail above, I found Aguilar generally in-
credible, while I viewed the Morales brothers as generally
truthful. Accordingly, I credit the Morales brothers’ version of
the June 18 meeting to the extent it differs from that told by
Aguilar. Further, I accept the testimony of the Morales broth-
ers that they have never knowingly hired any employee using
an alias, and would not do so.34 No credible evidence was of-
fered by the General Counsel to rebut that assertion. I accept
the testimony of the Morales brothers that the Respondent fired
Miguel Aguilar because he had used the alias of Ricardo Lopez
in asking for employment. While I continue to believe that
Aguilar’s union affiliation and activities may well have been a
motivating factor, I also believe that the Respondent would
have fired Aguilar upon learning of his use of an alias, even if
he had no union affiliation or activities. Accordingly, the Re-
spondent has met its burden and rebutted the General Counsel’s
prima facie case.
Therefore, I shall recommend that complaint paragraph 6(c)
be dismissed.
8. The discharge of Juan Carlos and Jaime Haro
It is alleged in complaint paragraphs 6(o) and 6(p) that the
Respondent discharged, respectively, Juan Carlos Haro and
Jaime Haro because of their union activities and affiliation.
The events surrounding the hiring, employment, and discharge
of the Haros has been set forth above in detail.
Applying the standards and factors as set forth by the Board
in Wright Line, supra; and Tracker Marine, supra, I conclude
that the General Counsel has failed to establish a prima facie
case that the Haros’ union activity was a motivating factor in
the Respondent’s decision to terminate them. For the reasons
cited in detail above, I found the Haros not to be credible.
Nevertheless, I will accept their testimony that during the
course of their employment they spoke to a number of other
employees while on jobsites about the benefits of union repre-
sentation, and also that they distributed union pamphlets and
literature to a number of installers. Of course, they were affili-
ated with the union, and it appears fairly obvious that the Re-
spondent at least knew of their union affiliation. They had
introduced Ricardo Lopez, aka Miguel Aguilar, to Fred
Morales as their friend. The evidence further establishes that
on June 17, Antonio Galvan informed Fred Morales that the
installers he had recently hired, meaning the Haros and Aguilar,
were union men. Also, I have found that following Aguilar’s
discharge, Morales, on June 19, interrogated the Haros about
their union affiliation and activities, as well as giving them the
impression that their union activities were under surveillance,
and threatening them with unspecified reprisals if they contin-
ued to have contact with Aguilar. These, of course, as well as
other violations of the Act, were serious unfair labor practices
34 The undersigned takes administrative notice that under the Immi-
gration Reform and Control Act of 1986, an employer, by reviewing
documentation, must verify the identity, and employment eligibility
status, of any person hired by that employer. However, it is important
to note that there is no contention that Miguel Aguilar is not authorized
to work in the United States, and no reason to believe that is the case.
QUALITY MECHANICAL INSULATION, INC. 817
committed by the Respondent. As noted earlier, such conduct
on the part of the Respondent demonstrates antiunion animus.
Further, it is obvious that the Respondent’s discharge of the
Haros on July 2635 constituted adverse employment actions.
However, while counsel for the General Counsel has met
three factors necessary to establish a prima facie case, I do not
believe that he has satisfied the fourth factor, namely a link, or
nexus, between the Haro brothers’ protected activity and their
termination. From June 19 until July 8, the Haro brothers con-
tinued to be employed by the Respondent without any sugges-
tion that their work was a problem. To the contrary, the
Morales brother both testified that the Haros performed their
jobs well. Suddenly, their work production decreased signifi-
cantly and their attitudes changed, as they seemed to exhibit
hostility toward the Respondent. As is set forth in detail above,
a number of the Respondent’s foremen testified credibly about
problems that the Haros were causing on the various jobsites to
which they were assigned.
The Respondent’s witnesses were unable to offer any reason
why the Haros’ attitudes seemed to suddenly change, and the
Haros denied any change on their part regarding attitude or pro-
duction. However, as noted earlier, I found the Haros incredible,
and I am of the belief that, for whatever reason, their production
was significantly reduced and they did exhibit hostility toward
the Respondent and its foremen. In any event, after the problems
with the Haros were reported to the Respondent’s superinten-
dents, the Morales brothers directed the foremen to monitor the
situation, and the superintendents began to keep a record of these
incidents. The Respondent’s witnesses, Ray Skaggs and the
Morales brothers, admitted that they had never before docu-
mented over a period of weeks the work performance and attitude
of any employee. However, they testified that prior to the Haros,
they had never had an employee whose production or attitude had
been such a problem. According to the Respondent’s witnesses,
except for Miguel Aguilar and the Haros, they had not had occa-
sion in recent years to discharge any employee. While employ-
ees are frequently “laid off,” this is simply a result of an eco-
nomic reduction-in-force.
In reviewing the situation with the Haros in totality, it appears
to me that initially the Respondent was quite pleased with the
Haros’ work performance, despite being aware that they were
affiliated with the Union. I believe the testimony of the Morales
brothers that they were largely unconcerned with whether the
Haros supported the Union or not, and were happy with the
quality of their work. Further, I believe that, for whatever rea-
son, the Haros’ attitude and work performance suddenly deterio-
rated. This concerned the Haros greatly, and they began to
monitor and document the situation around the end of the first
week in July. Unfortunately the situation got worse, requiring
the superintendents to take action. To that end, the Morales
brothers prepared the written Notice of Charges, which they
asked the Haros to respond to. Upon refusing, the Haros were
terminated on July 26, the result of their low production, poor
attitude, and refusal to respond to the “charges.”

35 Although the complaint reflects that Juan Carlos Haro was fired
on July 21, I believe that the evidence establishes that both Haros were
discharged on July 26.
In my view, the Respondent had sufficient cause to discharge
the Haros. Further, I believe the General Counsel has failed to
establish a nexus or link between the Haros’ union activities
and affiliation, and their discharges. Therefore, I find that the
General Counsel has not made a prima facie showing that the
Haro brothers’ union activities or affiliation were a motivating
factor in the Respondent’s decision to terminate them.
However, even assuming, for the sake of argument, that the
General Counsel had established a prima facie case, the evi-
dence is clear that the Respondent would still have discharged
the Haros, even absent their union affiliation and activities. As
I have said, the evidence establishes that the Respondent had
sufficient cause to discharge the brothers. Their work had dete-
riorated to the point where something needed to happen. The
Respondent could not allow the Haros’ low production and
antagonistic attitude to affect the other men on the crews they
were working with. The foremen had attempted to assist the
Haros and find out the cause of their difficulty, but the Haros
had met them with hostility. Under these circumstances, the
Respondent’s action was reasonable.
In my view, the Respondent’s stated reason for terminating
the Haros was not a pretext. They were fired for good cause.
Accordingly, I find that the Respondent has persuasively estab-
lished by a preponderance of the evidence that it would have
made the same decision to discharge Jaime and Juan Carlos
Haro, even in the absence of their union activities and affilia-
tion. T&J Trucking Co., 316 NLRB 771 (1995).
Therefore, based on the above, I shall recommend that com-
plaint paragraphs 6(o) and 6(p) be dismissed.
C. Summary
As is reflected above, I recommend dismissal of the follow-
ing paragraphs of the complaint: 5(a)(6) and (7), 5(b)(1)
through 5(b)(5), 5(d)(1) through 5(d)(7), and 6(a) through 6(s).
Further, I find that the Respondent has violated Section
8(a)(1) of the Act as alleged in paragraphs 5(a)(1) through
5(a)(5), 5(b)(6), and 5(c)(1)(i)(ii) and (2) of the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Quality Mechanical Insulation, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, International Association Of Heat and Frost
Insulators and Asbestos Workers, Local 73 of Arizona, AFL–
CIO, CLC is a labor organization within the meaning of Section
2(5) of the Act.
3. By the following acts and conduct the Respondent has
violated Section 8(a)(1) of the Act.
(a) Interrogating its employees regarding their union mem-
bership, activities and sympathies.
(b) Engaging in surveillance, or creating an impression
among its employees that their union activities were under sur-
veillance.
(c) Threatening its employees with unspecified reprisals to
discourage them from engaging in union and other concerted
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
(d) Promulgating an overly broad and discriminatory rule
prohibiting its employees from interacting with, or speaking to,
a union organizer.
(e) Soliciting its employees to do bodily harm to a union or-
ganizer to discourage its employees from engaging in union
activities.
(f) Threatening employee-applicants with trespassing and to
summon the police, because of their union affiliation and other
concerted activities.
(g) Engaging in surveillance of employee-applicants by pho-
tographing them, because of their union affiliation and other
concerted activities.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not committed the other violations of
law that are alleged in paragraphs 5(a)(6) and (7), 5(b)(1)
through 5(b)(5), 5(d)(1) through 5(d)(7), and 6(a) through 6(s)
of the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]