USA Remediation Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 15, 2006

05-CA-031524 (N.L.R.B. Mar. 15, 2006)

JD–20–06
Warrenton, VA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
USA REMEDIATION SERVICES, INC.
and Case 5–CA–31524
LABORERS MID-ATLANTIC REGIONAL
ORGANIZING COALITION
Elicia L. Watts, Esq., for the General Counsel.
David M. Kelsey, J.D., of Warrenton, Virginia
for the Respondent.
Michael Barrett, Esq., of Washington, DC for the
Charging Party.
DECISION
Statement of the Case
C. RICHARD MISERENDINO, Deputy Chief Administrative Law Judge. This case was
tried in Washington, DC on December 6 – 7, 9 – 13, 2004, and January 24, 2005. The charge
was filed on October 14, 2003,1 and the complaint was issued on January 29, 2004. The
complaint alleges that the Respondent violated Section 8(a)(1) of the Act by engaging in
unlawful surveillance of employees discussing safety and other terms and conditions of
employment during their lunch breaks; by unlawfully discouraging employees from discussing
these issues and unlawfully threatening to terminate their employment, if they continued to do
so; by unlawfully interrogating employee, Miguel Carballo, about his union membership and
activities, and unlawfully terminating him for engaging in concerted activities with other
employees for the purpose of mutual aid and protection. The Respondent’s timely answer
denied the material allegations of the complaint. The parties have been afforded a full
opportunity to appear, present evidence, examine and cross-examine witnesses, and
file briefs.2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Charging Party Union, I make
the following3

1 All dates are in 2003, unless otherwise indicated.
2 On December 13, 2004, after being formally warned and admonished about his conduct on
several occasions, David M. Kelsey was excluded for misconduct from further participation as
the Respondent’s representative. By Order, dated December 14, 2004, the Respondent was
directed to select and appoint a new representative, who had experience with the practices and
procedures of the Board, and the new representative was directed to file a written appearance
by no later than January 7, 2005. (GC Exh. 26.) The Order further stated that the trial would
resume on January 24, 2005. The Respondent did not obtain a new representative, did not
appear when the trial resumed, and did not file a posthearing brief.
3 The General Counsel’s unopposed motion to correct the transcript, dated March 7, 2005, is
Continued
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Findings of Fact
I. Jurisdiction
The Respondent, a corporation, admits and I find that it is engaged in lead and asbestos
removal and abatement services with an office and place of business in Warrenton, Virginia.
The Respondent annually conducts business from its Warrenton, Virginia office, providing
services valued in excess of $50,000 in states other than the Commonwealth of Virginia. The
Respondent nonetheless denies that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It failed and refused to produce financial records
reflecting commerce information that were subpoenaed by the General Counsel.4 I draw an
adverse inference that the subpoenaed documents would corroborate the admitted allegations
affecting interstate commerce and also substantiate the allegation contained in paragraph 2(c)
of the complaint. I therefore find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
The Respondent also denies that the Charging Party Laborers Mid-Atlantic Regional
Organizing Coalition (Coalition) is a labor organization within the meaning of the Act.
Section 2(5) of the Act defines a labor organization as
any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for
the purpose, in whole or part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
….or conditions of work.
In Vencare Ancillary Service, 334 NLRB 965, 969 (2001), the Board
stated:
for unrepresented employees collectively to constitute a labor
organization under Section 2(5) of the Act: (1) employees must
participate; (2) the organization, must exist, at least in part, for the
purposes of “dealing with” the employer; and (3) these dealings
must concern “grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.” See Electromation, Inc.,
309 NLRB 990, 994 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994).

The term “dealing with” contemplates “a bilateral mechanism
involving proposals from an employee committee concerning subjects listed
in Section 2(5), coupled with real or apparent consideration of those
proposals by management.” Electromation, supra, 309 NLRB at 995 fn. 21.
The Board has required that “dealing with” consist of “a pattern or practice
in which a group of employees, over time, makes proposals to management,
_________________________
granted and received in evidence as GC Exh. 31.
4 The Respondent’s representative, David M. Kelsey, mislead Counsel for the General
Counsel and me over the course of several days by stating that the subpoenaed information
was forthcoming and that it would be provided. (Tr. 11 – 14, 19 – 22, 534 – 536.)
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[and] management responds to those proposals by acceptance or rejection.”
Stoody Co., 320 NLRB 18, 20 (1995), quoting E.I. du Pont & Co.,
311 NLRB 893, 894 (1993). “If the evidence establishes such a pattern
or practice, or that the group exists for a purpose of following such a pattern
or practice, the element of dealing is present. However, if there are only
isolated instances in which the group makes ad hoc proposals to management
followed by a management response of acceptance or rejection by word or
deed, the element of dealing is missing.” Id.
The evidence shows that the Coalition is affiliated with the Laborers International Union
of North America. (Tr. 279.) Stephen Lanning, the Coalition’s director of organizing testified that
the Coalition’s purpose to assist local unions and district councils in the Mid-Atlantic area in
organizing primarily construction workers.5 (Tr. 279.) Its membership is comprised of local
unions and district councils. It is governed by a chairman, secretary, treasurer, and a board
made up local union and district council leaders. (Tr. 281.) It employs a paid director of
organizing and paid organizers, who are its employees. There is no evidence, however, that
individuals, employed by construction contractors, are members of the Coalition. In other words,
the evidence does not show that employees of construction contractors participate in the
Coalition.
Nor does the evidence show that the Coalition exists for the purpose of “dealing with”
construction contractors, whose employees the Coalition is helping the local unions to organize.
Although the Coalition may assist a local union in contract negotiations, if the union is selected,
the evidence shows that as an organization it is one step removed from “dealing with” the
employer on matters concerning “grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.”
I therefore find that the Laborers Mid-Atlantic Regional Organizing Coalition is not a
labor organization within the meaning of the Act. The Laborers International Union of North
American and its local unions and district councils are the “labor organizations.” The Coalition is
merely an umbrella entity comprised of local unions and district councils which assists in
organizing employees of construction contractors.
III. Alleged Unfair Labor Practices
In mid-June 2003, the Respondent was a subcontractor responsible for demolition and
hazardous material removal on a building renovation project called Hochmuth Hall, U.S. Marine
Corps Base, Quantico, Virginia (Marine Corps Base project). (Tr. 172, 177.) (Tr. 257.). It
effectively was hired to remove everything in the building, tear down the ceilings and walls, and
bring the structure back to bare concrete walls.6
Eric Woodruff was the Respondent’s Project Manager and point of contact with general
contractor’s superintendent. Rick Sullivan was the Respondent’s demolition foreman, who
oversaw the demolition project and coordinated with the superintendent in the absence of
Woodruff. Robert Garniga, who is bilingual in Spanish and English, was a laborer for

5 The Mid-Atlantic Region includes the District of Columbia, Maryland, Virginia,
Pennsylvania, West Virginia, and North Carolina. (Tr. 280.)
6 The Whiting-Turner Contracting Company was the general contractor. Christopher Rogers
was the general contractor’s superintendent and safely coordinator for the Hochmuth Hall
project.
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Respondent, who served as an interpreter for Woodruff in directing the predominantly Spanish
speaking workforce.
A. The Supervisory Status of Eric Woodruff and Rick Sullivan
The complaint alleges, but the Respondent denies, that Project Manager Eric Woodruff
and Demolition Foreman Rick Sullivan are supervisors within the meaning of Section 2(11) of
the Act.7
1. The Legal Standard
A supervisor as defined by Section 2(11) of the Act is:
…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 recommend such action,
if in connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of
independent judgment.
Section 2(11) is read in the disjunctive. The possession of any one of the authorities
listed is sufficient to designate an individual vested with this authority as a supervisor,
Mississippi Power Co., 328 NLRB 965, 969 (1999), citing Ohio Power v. NLRB, 176 F.2d 385,
387 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949), so long as the individual exercises
independent judgment in conjunction with those authorities on behalf of management, rather
that exercising them in a routine manner. Clark Machine Corp., 308 NLRB 555 (1992). It is
settled law, however, that the burden of proving supervisory status is on the party alleging that
an individual is a supervisor. Kentucky River Community Care, Inc., 532 U.S. 706, 712 (2001);
Health Care Corp., 306 NLRB 63 fn. 1 (1992). Thus, the General Counsel must show that the
Woodruff and Sullivan are Section 2(11) supervisors.
2. Eric Woodruff
Eric Woodruff has worked for the Respondent for 10 years and more specifically has
been a project manager for the last five or six years. (Tr. 152.) He reports to Tim Shears, an
Operational Manager, who in turn reports to Jeffrey Sullivan, the Respondent’s president. (Tr.
169 -170.) Woodruff is required to attend supervisor and foremen meetings that are held on a
regular basis. (Tr. 234.) He is a salaried employee, who receives benefits, like medical and
dental coverage, eye care coverage, paid vacation and use of a company motor vehicle. (Tr.
196, 197.) Laborers or non-management employees are hourly paid and do not receive these
benefits.
In June 2003, Woodruff was the project manager on the Marine Corps Base project. (Tr.

7 The complaint alleges that Rick Sullivan’s title was project manager, but the unrebutted
evidence show that his official title was demolition foreman. The complaint also alleges that
Robert Garniga is a Section 2(11) supervisor. However, in its posthearing brief at page 53–54,
the General Counsel only argues that Garniga is a Section 2(13) agent of the Respondent
thereby implicitly conceding that the evidence does not support a finding that Garniga is a
Section 2(11) supervisor.
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172, 177.) He testified that it was his job to “read and understand the plans, make sure that
there was enough men and materials on the site in order to accomplish said task, attend
meetings with the general contractor and the Government, run my crew.” (Tr. 176.) When asked
if he received any specific instructions from anyone in order to do his job, Woodruff stated that
he was “pretty much autonomous.” (Tr. 176, 241.) This evidence, alone, supports a reasonable
inference that Woodruff exercised independent judgment in performing his duties on the project.
Woodruff further stated that he was the Respondent’s interface with the general
contractor, Whiting and Turner. (Tr. 258-259.) He submitted daily work logs to the
superintendent, Chris Rogers, showing the work his crew had completed and the work that
remained to be done. (Tr. 178 –179, 259.)
With respect to hiring, Woodruff’s testimony concerning his authority to hire employees
was contradictory. Initially he stated, “I don’t look at peoples applications. I don’t do any hiring.”
(Tr. 202.) A few minutes later, he testified that he accepted employment applications on the
jobsite and if work was available he would tell the applicant that he could start work on a date
certain, contingent upon the front office in Warrenton approving the applicant’s paperwork. (Tr.
208.) By giving the applicant a start date, contingent upon the front office approval, the evidence
supports a reasonable inference that Woodruff is involved in the hiring process and effectively
recommends hiring.
Woodruff further testified that he recommends employees for pay increases and is
responsible for disciplining workers. (Tr. 211.The discipline could be a suspension or
termination depending on the circumstances. (Tr. 214.) He does need approval from the front
office in Warrenton, prior to or after issuing the discipline. (Tr. 215.)
Based on the evidence viewed as a whole, I find that Eric Woodruff is a supervisor within
the meaning of Section 2(11) of the Act.
3. Rick Sullivan
Rick Sullivan reported to Woodruff on the Marine Corps Base project. (Tr. 170.) He was
a salaried employee and he received the same benefits as Woodruff .8 (Tr. 227-228.) Woodruff
unpersuasively testified that he was unsure whether Rick Sullivan was managerial, supervisory,
or a foreman. (Tr. 154.) However, he subsequently stated that Rick Sullivan was a demolition
foreman on the Marine Corps Base project with responsibility for overseeing and directing a
crew working in the basement of Hockmuth Hall. (Tr. 176.) Woodruff testified that Rick Sullivan
was authorized to “do what he had to do” in the basement. (Tr. 181.) Sullivan assigned work
and closely supervised the laborers. (Tr. 367-368.) He maintained a separate daily work log
showing the work his crew completed in the basement, which he gave to Woodruff, who
submitted it to the general contractor. (Tr. 180, 194.) In addition, the unrebutted evidence shows
that whenever Woodruff was absent from the project, Rick Sullivan substituted for him and
interfaced with the general contractor. (Tr. 259, 260.) Thus, the evidence reflects that Rick
Sullivan exercised independent judgment in assigning work, directing his crew, and representing
the Respondent in dealings with the general contractor.
Rick Sullivan was subpoenaed by the General Counsel to testify at the trial, but did not
appear. (GC Exhs. 18 and 19.) No explanation was given for his absence. In her posthearing

8 The evidence shows that Rick Sullivan was the older brother of Jeffrey Sullivan, the
Respondent’s president.
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brief at page 54, n. 58, counsel for the General Counsel asserts that an adverse inference
should be drawn that Rick Sullivan’s testimony would be unfavorable to the Respondent on the
issue of whether he is a supervisor within the meaning of the Act. The familial relationship
between Rick and Jeffrey Sullivan, the Respondent’s president, supports a reasonable
presumption that Rick Sullivan would give favorable testimony on behalf of the Respondent had
he appeared and testified at trial. His failure to appear therefore gives rise to an adverse
inference that his testimony on the supervisory issue would have been unfavorable. I agree and
I draw an adverse inference.9
The evidence viewed as a whole shows that Rick Sullivan used independent judgment in
overseeing, assigning, and directing the crew performing demolition work in the basement of
Hockmuth Hall. He was also the point person on the job in the Woodruff’s absence, interfaced
with the general contractor, and issued directions to the entire workforce at those times.
Accordingly, I find that Rick Sullivan was a supervisor within the meaning of Section 2(11) of the
Act.
In addition, it is alleged and argued, and I find, that Rick Sullivan was an agent on the
Respondent within the meaning of Section 2(13) of the Act. Great American Products, 312
NLRB 962, 963 (1993). The undisputed evidence shows that Rick Sullivan as a demolition
foreman for the Respondent directed the basement crew and periodically served as the
Respondent’s point person for the entire jobsite. Thus, the evidence shows that because of his
position and conduct, the general contractor and the employees, i.e., the third parties, could
reasonably conclude that Rick Sullivan was acting on behalf of the Respondent as an agent
within the meaning of Section 2(13) of the Act.
B. The Agency Status of Robert Garniga
1. Facts
Robert Garniga was a laborer, who spoke both English and Spanish. (Tr. 198-199.) An
hourly paid employee, the evidence shows that he made two dollars an hour more than the
other laborers. (Tr. 198.) Eric Woodruff described Garniga as a valuable translator. Because the
work crews were comprised of primarily Spanish speaking laborers, and because neither
Woodruff nor Rick Sullivan spoke Spanish, Woodruff directed the crews through Garniga. (Tr.
203-204.) Woodruff told Garniga what he wanted the crew to do in English, and Garniga relayed
the instructions to the crew in Spanish. Woodruff testified that at times he was present when
Garniga instructed the crew in Spanish and other times, he was not present. (Tr. 204-205, 330.)
When crew members had questions, they spoke to Garniga in Spanish. He translated the
question to Woodruff in English, obtained the answer, and reported the information back to the
crew in Spanish.
The evidence also shows that Garniga served as an interpreter at regularly held safety
meetings. (Tr. 206, 327, 361-362, 369-370.) According to the unrebutted testimony of Miguel
Carballo, at the end of the first safety meeting he attended as a new employee, Woodruff told all
the employees through Garniga that Garniga was a supervisor. (Tr. 329, 362.) Carballo also
observed Garniga assigning work to employees and checking on their progress. (Tr. 331, 333.)

9 Counsel for the General Counsel also asserts that an adverse inference should be drawn
because Respondent failed to produce documents concerning Rick Sullivan in response to
document subpoena request nos. 9 and 10. In particular, the Respondent failed and refuses to
produce the Rick Sullivan’s salary records. I therefore draw an adverse inference on this basis.
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Laborer Elberto Vega further testified that he considered Garniga to be a boss. (Tr. 86-88.)
Garniga was served at the Respondent’s place of business with a witness subpoena
from the General Counsel, but failed to appear and testify. Counsel for the General Counsel
asserts that because he failed to appear as a witness an adverse inference should be drawn
that his testimony would be unfavorable to the Respondent concerning his alleged agency
status. I decline to draw an adverse inference on the ultimate issue of agency in the absence of
persuasive evidence showing that Garniga more than likely would have testified favorably for
the Respondent had he appeared in response to the subpoena.
In addition, counsel for the General Counsel asserts that an adverse inference should be
drawn from the Respondent’s failure to provided subpoenaed documents. Specifically, the
General Counsel’s document subpoena request nos. 8 – 11 seek information concerning,
among other things, Robert Garniga’s terms and conditions of employment and duties. The
evidence reflects that documents responsive to request nos. 8, 9, and 10 were provided and
that no documents purportedly existed in response to request no. 11. (Tr. 14-16; GC Exh. 2 and
3.) At trial, Counsel for the General Counsel did not assert that the documents provided were
not responsive to the requests or that any request needed to be supplemented. Thus, under the
circumstances, there is no basis for drawing adverse inference.
2. Analysis and findings
The complaint alleges, and the General Counsel argues, that Robert Garniga is an agent
within the meaning of Section 2(13) of the Act. The Respondent denied the allegation in its
answer.
Section 2(13) of the Act provides that:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts performed
were actually authorized or subsequently ratified shall not be
controlling.
The Board applies common law principles when examining whether an employee is an agent of
the employer. Apparent authority results from a manifestation by the principal to a third party
that creates a reasonable belief for the latter to believe that the principal has authorized the
alleged agent to perform the acts in question. Great American Products, 312 NLRB 962, 963
(1993). Where an employer regularly communicates with its non-English speaking employees
through a bilingual employee-interpreter, the Board has held that the employer has made the
employee-interpreter its agent for purposes of communication. Poly-America, Inc., 328 NLRB
667 (1999); Cream of the Crop, 300 NLRB 914 (1990).
The undisputed evidence shows that Garniga was a conduit for the Respondent, who at
Woodruff’s direction told the employees what to do and when to do it. In return, the employees
sought direction and clarification through Garniga. (Tr. 112, 134-135.) He was perceived by the
employees as a “boss,” the person second in command to Woodruff. (Tr. 88, 89-90, 118.) There
can be no other conclusion than the employees reasonably believed that Garniga was speaking
and acting on behalf of the Respondent. Accordingly, I find that Robert Garniga was an agent
within the meaning of Section 2(13) of the Act.
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C. The Marine Corps Base Project
1. Safety Concerns
In mid-June 2003, the Respondent’s crews began demolishing Hockmuth Hall. They
removed the entire contents of the building and tore down the ceilings and the walls. The
laborers worked in areas surrounded by construction debris.
Chris Rogers, the general contractor’s superintendent, was also the project safety
officer. He frequently walked through the building to make sure that the workers were wearing
hard hats and safety goggles, and that safety standards were being maintained. On several
occasions, Rogers found the Respondent using electrical extension cords that did not have
ground prongs. Rogers testified that when he found an unsafe extension cord he would cut it so
the cord could no longer be used. (Tr. 263, 264.) On occasion, Rogers also cited the
Respondent for not bending or removing the nails in demolished boards.
Rogers testified that he had a three strike policy for safety infractions, which consisted of
a verbal warning, a first written warning, and a second written warning. Receipt of a second
written warning resulted in removal from the jobsite. According to Rogers, Demolition Foreman
Rick Sullivan was a repeat safety violator, who was given three safety warnings and was
removed from the project for one-week. (Tr. 264-265.)
2. Carballo is hired
Miguel Carballo is, and was, a paid union organizer for Local 11, MAROC (Tr. 316-317,
357.) He covertly applied for a job on the Marine Corps Base project and was hired. On June
16, 2003, he began working for the Respondent as a laborer. (Tr. 325.)
Carballo wasted no time reporting unsafe working conditions to Eric Woodruff, the
Respondent’s project manager. Specifically, he reported that certain extension cords were
unsafe and complained to Woodruff about a lack of drinking water for the crew. (Tr. 334,
335.387-388.) Carballo also sought drinking water for employees from Rogers, the general
contractor’s superintendent. (Tr. 94-95, 388-389.)
The crews typically took their lunch break in a small grassy area immediately in front of
Hockmuth Hall. (Tr. 373.) Woodruff’s first floor office overlooked the grassy area. (Tr. 373-374.)
After a week or so on the job, Carballo began talking to the workers during the lunch break
about the Union and unsafe working conditions. (Tr. 43, 48, 378.) He told them about the
benefits of joining the Union and talked with them about the unsafe working conditions and
insufficient drinking water. (Tr. 93, 376, 378, 379.)
Carballo was off work from July 1-7 to assist his wife with their newborn baby. (Tr. 379.)
When he returned to work on July 8, Carballo resumed his lunchtime activity of discussing the
benefits of joining the Union with the employees. Notably, Robert Garniga, who normally ate
lunch in his vehicle, joined the group. (Tr. 380, 393, 395.) Garniga asked questions about
medical insurance and Union training classes. He also questioned Carballo’s assertions about
the benefits of joining a Union. (Tr. 386.) On Thursday, July 10, Garniga told Carballo during the
lunch break that he did not believe everything that Carballo told the group about the Union, got
up, and walked away. A few minutes later, as the workers were returning to work, Carballo saw
Garniga in Woodruff’s office. Later that afternoon, Carballo was assigned to work with Garniga.
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3. Carballo is fired
The next day, Friday, July 11, Carballo arrived at work, attended a regularly scheduled
safety meeting, and again was assigned to work with Garniga in the basement. (Tr. 396-397.) At
approximately 7:10 a.m., Garniga sent Carballo upstairs to get a hammer from the warehouse
area of the building. The warehouse area was located adjacent to Woodruff’s office, and the two
areas were separated by a partition wall that did not extend to the ceiling. In other words, there
was an open space between the top of the wall and the ceiling.
Standing in the warehouse area, Carballo was unable to see into the office. (Tr. 399.)
However, he could hear Woodruff telling Rick Sullivan that he, Carballo, was talking to the
employees during lunch about Union benefits and safety. (Tr. 399, 401.) Woodruff told Rick
Sullivan that he reported this information to the Warrenton office and that he was waiting
instructions on what to do. Carballo took the hammer and went back to work.
A few hours later, Garniga told Carballo that Woodruff wanted to speak with him outside.
(Tr. 402.) Woodruff met Carballo in a parking area in front of the building. Rick Sullivan was also
present. (Tr. 406.) There are differing versions of the conversation that followed.
According to Carballo, Woodruff told him that it was his last day of work. When he asked
Woodruff if he had any complaints about his work, Woodruff told him, “No.” (Tr. 404.) Carballo
testified that Woodruff told him that he was being discharged for talking to the other employees
during lunch breaks about safety issues and the Union. (Tr. 404.) Carballo told Woodruff that it
was his free time and that he was only trying to keep the employees from getting hurt on the job.
(Tr. 405.) Carballo testified that Woodruff told him that it was bad for the Company because the
production would slow down. Woodruff reiterated that Carballo was fired and added that the
superintendent, Chris Rogers, agreed with the discharge decision.
Woodruff testified that he came upon Carballo outside talking on his cell phone “walking
across the courtyard not doing his job inside the building ....” (Tr. 220, 223.) He stated that twice
before he told Carballo not to use his cell phone on the job, but that Carballo simply shrugged it
off. (Tr. 244.) Woodruff stated that this time, the third time, he told Carballo, “I told him this is the
third and last time you’re on the phone, you know, this just can’t happen anymore.” (Tr. 245.)
Woodruff testified that the cell phone was the only reason he gave Carballo for firing him. (Tr.
251.) He also testified that Rick Sullivan was present when he fired Carballo. (Tr. 222.)
Carballo testified that he went to the office trailer of Whiting & Turner to speak with
Rogers. (Tr. 407.) He told Rogers that Woodruff fired him for talking about Union issues and
safety issues. He also told Rogers that Woodruff told him that he, Rogers, agreed with the
discharge decision. (Tr. 408.) According to Carballo, Rogers denied discussing the discharge
with Woodruff and denied that he supported the decision.
Carballo left the trailer and walked back to Woodruff and Rick Sullivan. He told Woodruff
that Rogers denied that he agreed with the discharge decision. Woodruff reiterated that Carballo
was fired. Carballo testified that when he asked for his final paycheck, Woodruff told him, “the
Union f_ _king – this is not a union job.” (Tr. 410.) At that point, Rick Sullivan asked Carballo
whether he belonged to the Union and Carballo responded affirmatively. (Tr. 411.) Rick Sullivan
uttered a vulgarity and walked into the building.
Woodruff testified that Carballo became very upset and threw his hard hat on the
ground. (Tr. 244-245.) Rogers confirmed that Carballo appeared very agitated, so he called the
military police to escort Carballo off the jobsite as a precaution. (Tr. 276.) Although Carballo
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denied being verbally or physically abusive and further denied throwing his hard hat, the
corroborative testimonies of Woodruff and Rogers credibly reflect that Carballo was upset and
agitated about being discharged. (Tr. 414.)
Later that day, after Carballo left the jobsite, Robert Garniga told employee Elberto Vega
that Carballo was fired “because he talked too much about the Union.” (Tr. 100-101.) Vega
credibly testified that Woodruff also told him that Carballo was fired because of “his part in the
Union.” (Tr. 101.)
4. Credibility Resolutions
Carballo testified that Woodruff told him that he was fired for talking to the other
employees during lunch breaks about safety issues and the Union. He further testified that
Woodruff stated that these discussions were bad for the Company because they slowed
production down. In contrast, Woodruff testified that he told Carballo at the time of firing that he
was being discharged for his repeated use of a cell phone during working hours. 10 In response
to a leading and carefully worded question from the Respondent’s representative, Woodruff
denied that he knew “Carballo was associated with any union whatsoever” when he fired him.
(Tr. 240-241.)
First, Woodruff’s denial that he did not know that Carballo was “associated with a union”
when he fired him is beside the point and of no significance. The issue is whether Carballo was
fired for “talking” about the Union with the employees at lunch. Woodruff did not deny knowing
at the time of discharge that Carballo was talking with the employees about the benefits of a
Union or testify that he had no knowledge that Carballo has been telling the employees about
Union benefits during the lunch break.
Second, Carballo’s testimony that he was told he was being fired for talking about the
Union and safety to the employees is supported by the unrebutted testimony of Elberto Vega,
who credibly testified that on the day Carballo was discharged, Woodruff told him that Carballo
had been fired because of “his part in the Union.” (Tr. 101.) Vega further testified that on the
same day, July 11, 2003, Robert Garniga also told him that Carballo was discharged because
he talked too much about the Union. (Tr. 100-101.)
Finally, Woodruff testified that Demolition Foreman Rick Sullivan, a Section 2(11)
supervisor, was present when he fired Carballo. (Tr. 222.) Rick Sullivan failed to appear and
testify in compliance with a subpoena served on him by the General Counsel. I find that the
circumstances warrant an inference that Rick Sullivan’s testimony would not have supported
Woodruff’s assertion that he told Carballo he was firing for using a cell phone. Rather, from his
failure to appear and testify, I draw an adverse inference that Rick Sullivan’s testimony would
have corroborated Carballo’s testimony that Woodruff told him that he was being discharged for
talking to the other employees during lunch breaks about safety issues and the Union.
Likewise, Robert Garniga, an agent of the Respondent, failed to appear and testify in
compliance with a subpoena served on him by the General Counsel. I find that the
circumstances warrant an inference that Garniga’s testimony would have supported Carballo’s
testimony that he was discharged for talking about safety and the Union during non-work hours.

10 Woodruff also testified that when he fired Carballo, he did not mention safety and
nonperformance as additional reasons for discharge. (Tr. 251.)
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For these reasons, I credit Carballo’s testimony that at the time of discharge, Woodruff
told him that he was being fired for talking to his coworkers during lunch break about safety and
the Union.
In an effort to show animus, General Counsel relies in part on the testimony of a witness,
Irma Mercado, who testified that one day she went to the Respondent’s office on the Marine
Corps Base project to pickup an extension cord. (Tr. 51.) She testified that she overheard
Woodruff, who was talking on the telephone in English, tell someone that Carballo was a
“dangerous” person. (Tr. 49.)
Mercado was confused and appeared very distracted at the hearing.11 At one point, she
testified that the telephone conversation she overhead took place in August 2003, which would
have been after the discharge. She later testified that she over heard the telephone
conversation before Carballo was fired (July 2003).
Mercado speaks and understands very little English. She required an interpreter at the
hearing. Through the interpreter she testified that she heard Woodruff tell someone in English
that Carballo was a dangerous person, but she did not testify that he used that very word nor
did she repeat in English the exact word or words spoken by Woodruff. While I do not doubt that
she heard Woodruff make a remark about Carballo, I am unable to discern exactly what the
remark was and when it was made. I therefore give no weight to this part of Mercado’s
testimony.
D. Alleged Unlawful Rule and Threat
Paragraph 6 of the complaint alleges that on July 11, 2003, Eric Woodruff violated
Section 8(a)(1) of the Act by telling Miguel Carballo that it was bad for the Company to discuss
safety issues and terms of employment with other employees and threatening to discharge him
for doing so. In its posthearing brief at page 56-58, the General Counsel effectively argues that
the Respondent had a published rule or ad hoc declaration prohibiting employees from
discussing wages and other terms and conditions of employment and that it threatened to
discharge Carballo for violating the rule. In support of its theory, the General Counsel cites
several cases in which the employer actually promulgated and maintained a written or verbal
rule prohibiting employees from discussing salaries and other terms of employment. I find that
neither the evidence nor the law cited by the General Counsel support an independent 8(a)(1)
violation for the following reasons.
There is no evidence that the Respondent had a written or verbal rule prohibiting
employees from discussing wages or other terms and conditions of employment with each
other. There is no evidence showing that the Respondent told any employees that they were
not allowed to discuss these matters. There is no evidence that the Respondent threatened to
discipline or discharge any employee for breaching such a rule or that Woodruff told Carballo
that he was being discharged for breaching such a rule.

11 Mercado apologetically explained that it was difficult to concentrate because she was
tired, had traveled from out of state to testify at the hearing, and that she was preoccupied by
family problems at home. Her confusion and concentration difficulties, based on my
observations, were compounded by the surly, rude, and agitated behavior of Respondent’s
representative, David Kelsey, who was repeatedly warned about his conduct. (Tr. 54, 56, 58-
59.)
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Instead, the evidence shows that on a daily basis for almost two weeks Carballo
discussed with the employees during lunch breaks safety and the benefits of joining the Union.
These discussions took place outside the building on a grassy area in front of the window to
Woodruff’s office. Garniga participated in a few of these discussions. At no time did Woodruff,
Rick Sullivan or any other management official prohibit Carballo or any other employee from
holding these discussions or threaten to discipline them for doing so.
Accordingly, I shall recommend the dismissal of the allegations in paragraph 6 of the
complaint.
E. Unlawful Surveillance
Paragraph 5 of the complaint alleges that the Respondent engaged in unlawful
surveillance when Robert Garniga joined the employee for lunch and questioned Miguel
Carballo about the benefits of having a union.
An employer’s routine observation of employees engaged in open Section 7 activity on
company property does not constitute unlawful surveillance. Eddyleon Chocolate Co., 301
NLRB 887, 888 (1991). However, an employer violates Section 8(a)(1) when it surveils
employees engaged in Section 7 activity by observing them in a way that is “out of the ordinary”
and thereby coercive. Sands Hotel & Casino, 306 NLRB 172 (1992), enfd. sub nom. mem.
S.J.R.R., Inc. v. NLRB, 993 F.2d 913 (D.C. Cir. 1993). Indicia of coerciveness include the
duration of the observation, the employer’s distance from its employees while observing them,
and whether the employer engaged in other coercive behavior during its observation. Id.
The undisputed evidence shows that Carballo and the other employees ate lunch
outside the building on a grassy area in front of the window to Woodruff’s office. His discussions
with the employees were in plain view of the employer. The unrebutted credible evidence
shows, however, that Robert Garniga, who the employees perceived to be a “boss” or
supervisor, routinely ate his lunch in his vehicle. Thus, it was “out of the ordinary” for him to join
the other employees for lunch and to participate in the discussion with Carballo about the Union.
In addition, the evidence shows that on the second day that Garniga ate lunch with the
employees, he challenged the accuracy of Carballo’s assertions about the benefits of joining the
Union, left the group before the lunch break ended, and a few minutes later he was seen by
Carballo talking to Woodruff. When lunch ended and the group returned to work, Carballo was
assigned to work with Garniga. The very next day, Carballo was discharged for talking to the
other employees during lunch breaks about safety issues and the Union.
The evidence viewed as a whole supports a reasonable inference that the Respondent
through its agent actively engaged in unlawful surveillance. Accordingly, I find that the
Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 5 of the complaint.
F. The Unlawful Interrogation
Paragraph 7 of the complaint alleges that on July 11, 2003, Rick Sullivan unlawfully
interrogated Miguel Carballo, after he was was fired and told to leave the jobsite, by asking him
if he belonged to the Union.
It is well settled that interrogation is not illegal per se. To fall within the ambit of Section
8(a)(1), either the words themselves or the context in which they are used must suggest an
element of coercion or interference. The evidence shows that after Woodruff told Carballo that
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he was fired and why, Carballo sought out Chris Rogers, the job superintendent, to ascertain
whether he agreed with the discharge decision. When Rogers denied any involvement in the
discharge decision, Carballo became upset and returned to Woodruff demanding his paycheck.
Carballo was so agitated that Rogers called the military police as a precaution to escort off him
the jobsite. In the meantime, Woodruff rebuffed Carballo’s request for his last paycheck telling
him that this was not a “Union f _king” job. At that point, Rick Sullivan, a supervisor, asked
Carballo if he belonged to the Union to which Carballo responded affirmatively.
Rick Sullivan’s question was asked in the presence of another supervisor, Woodruff,
who knew that Carballo favored having a union. It was asked in the context of a discharge
accompanied by a hostile exchange. There was no reason for Sullivan to ask the question other
than to confirm their suspicions that Carballo was a union supporter, which was the articulated
underlying reason for discharging him. Under the totality of the circumstances, I find that the
interrogation was coercive and unlawful. Accordingly, I find that the Respondent violated
Section 8(a)(1) of the Act as alleged in paragraph 7 of the complaint.
G. The Unlawful Discharge
1. The legal standard
In Wright Line, a Div. of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board established an analytical framework
for deciding discrimination cases turning on employer motivation. The General Counsel must
persuasively establish that the evidence supports an inference that union activity was a
motivating factor in the employer’s decision12. Specifically, the General Counsel must establish
union activity, knowledge, animus or hostility, and adverse action, which tends to encourage or
discourage union activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Inferences of animus
and unlawful motive may be inferred from the total circumstances proved and in some
circumstances may be inferred in the absence of direct evidence. Fluor Daniel, Inc., 304 NLRB
970 (1991). Once accomplished, the burden shifts to the employer to persuasively establish by
a preponderance of the evidence that the reasons for its decision were not pretextual or that it
would have made the same decision, even in the absence of protected concerted activity. T&J
Trucking Co., 316 NLRB 771 (1995).
2. The General Counsel’s evidence
The undisputed evidence shows that Miguel Carballo is a paid Union organizer, who
covertly applied for a job with the Respondent, was hired, and thereafter attempted to organize
the employees by talking to them during lunch breaks about safety concerns and the benefits of
joining the Union. A few days before Carballo was discharged, Robert Garniga, an agent of the
Respondent, joined the lunchtime discussions and challenged Carballo’s assertions about the
benefit of belonging to a Union. Garniga’s knowledge that Carballo was in favor of having union
representation was therefore imputed to the Respondent. In addition, Garniga, who was
perceived to be a boss by the employees, openly opposed Carballo’s assertions about the
Union which is additional evidence of animus. Finally, the credible testimony shows that
Woodruff told Carballo that he was being fired for talking to the employees about safety and the
Union.

12 In re Manno Electric, Inc., 321 NLRB 278, 280, fn. 12 (1996).
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Based on the evidence viewed as a whole, I find that the General Counsel has satisfied
its initial Wright Line evidentiary burden.
3. The Respondent’s defenses
The credible evidence shows, and I have found, that at the time of discharge, Woodruff
told Carballo that he was being fired for talking to his coworkers during lunch break about safety
and the Union. Woodruff conceded that at the time of discharge he did not mention safety and
poor performance as reasons for discharge. (Tr. 251.) At trial, however, Woodruff testified that
Carballo was discharged for using his cell phone during working hours, working in an unsafe
manner, and for not getting the job done. For the reasons below, I find that the reasons given at
trial for discharging Carballo are nothing more than unsupported post hoc rationalizations.
According to Woodruff, it was his rule that employees were not allowed to use cell
phones on the job, unless they first asked his permission. (Tr. 218.) He stated that he warned
Carballo twice before about using a cell phone on the job. The third time he observed him using
a cell phone, he discharged him. Woodruff admitted, however, that there was no Company
policy prohibiting the use of cell phones on the job nor was any other employee discharged for
using a cell phone during working hours. (Tr. 221, 223-224.) There is no evidence that Woodruff
explained his rule to any other employee. Thus, the existence, promulgation, and enforcement
of “his” rule are dubious.
In addition, the undisputed evidence shows that many employees used cell phones on
the job during work hours. Chris Rogers, the job superintendent, testified that “[e]verybody
carries cell phones these days and everybody is on them. It’s a constant baby-sitting thing on a
job site.” (Tr. 268.) He further testified there were other employees using cell phones on the
jobsite. Both Carballo and Vega corroborated Rogers’ testimony on this point. Vega testified that
Garniga would allow employees to use his cell phone while they were working, including Miguel
Carballo. (Tr. 115-116.) Carballo testified that he observed other workers using a cell phone on
the job. (Tr. 447-448.) He also testified that Garniga borrowed his cell phone to make a call on
4-5 occasions. (Tr. 421, 429, 436.) In the absence of any evidence showing that Woodruff told
the employees that they needed permission to use a cell phone on the job, the evidence
supports a reasonable inference that the Respondent encouraged and condoned the use of cell
phones during work hours. Electrical Workers Local 98 (MCF Service), 342 NLRB No. 74, slip
op. at 3 (2004) (a principal is liable for his agent’s actions, even if the principal did not authorize
or ratify the particular acts).
Thus, based on the evidence viewed as a whole, I find that the cell phone reason given
at trial for discharging Carballo is unconvincing.
Equally unpersuasive is Woodruff’s testimony that Carballo was discharged because he
was an unsafe worker. Woodruff asserted that he counseled Carballo about walking around the
top edge of a dumpster and observed him move a heavy metal door by himself. Contrary to
Woodruff’s assertions, however, the undisputed evidence shows that from the outset Carballo
was a very safety conscious worker. He reported unsafe working conditions to Woodruff and
complained about the insufficient supply of potable water for the employees, who worked in very
hot and humid weather. In addition, Chris Rogers, who was also the jobsite safety officer,
testified that he never issued a safety warning to Carballo and that he never observed him
working in an unsafe manner. Rather, Rogers stated that Carballo always wore his safety
glasses and hard hat and opined that Carballo was very conscientious about safety. (Tr. 265-
266.) Vega, a co-worker, likewise testified that Carballo was a safe worker. (Tr. 102.) Thus, the
evidence viewed as a whole does not support Woodruff’s assertion that Carballo was an unsafe
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worker which justified his discharge.
Finally, the assertion that Carballo’s job performance was less than satisfactory is
dubious. Woodruff gave general examples of tasks that Carballo purportedly was not
satisfactorily performing. (Tr. 249-250.) Although he stated that he thought from the beginning
that Carballo was not a hard worker, he unpersuasively testified that he did not take any action
to address the issue because he was short of help.
Based on the evidence viewed as a whole, I find that the Respondent’s post hoc reasons
for discharging Carballo are pretextual. I further find that had it not been for his support of the
Union, the Respondent would not have discharged Carballo. Accordingly, I find that the
Respondent violated Section 8(a)(3) and (1) by discharging Miguel Carballo.
H. Misconduct of the Respondent’s Representative
David M. Kelsey, J.D., appeared as the representative on behalf of the Respondent and
was also called as a 611 (c) witness by counsel for the General Counsel. He is a corporate
director and risk manager of the Respondent. (Tr. 341.) He also is the Company’s custodian of
records. (Tr. 342, 343.)
Throughout these proceedings, Kelsey repeatedly displayed inappropriate conduct,
taking frivolous positions, and displaying disrespectful behavior, which prompted several
warnings and admonishments from me, and eventually resulted in his removal from the hearing.
For example, the answer Kelsey filed on behalf of the Respondent admitted that the
Respondent maintained a corporate office in Warrenton, Virginia, from which it annually
performed services in excess of $50,000 in other states, but denied without good grounds for
support that the Respondent was engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act. As a result, the General Counsel served a subpoena duces tecum on the
Respondent at its corporate headquarters in Warrenton, Virginia, seeking, among other things,
financial information pertinent to establishing that the Respondent was engaged in interstate
commerce within the meaning of the Act. Although Kelsey conceded that the Respondent
received the subpoena, it failed to file a petition to revoke and refused to produce the
documents. (Tr. 343-345.) Instead, at trial, Kelsey frivolously objected to the subpoena on the
grounds that the records sought were kept in Western New York, and not Warrenton, Virginia,
and therefore the subpoena should have been issued by the Board’s Regional Office in Buffalo,
New York, rather than the Board’s Regional Office in Baltimore, Maryland. The objection was
overruled and Kelsey was instructed to obtain the documents and deliver them to the hearing
with dispatch. (Tr.13.) After that, he repeatedly stated that the documents were forthcoming, but
as each day passed without the documents, he denied culpability and rendered sophomoric
excuses for not producing the documents, thereby effectively ignoring my instructions. (Tr. 12-
13, 137-138, 149, 313-314, 534-536.)
The answer prepared by Kelsey also denied that Eric Woodruff was a supervisor within
the meaning of Section 2(11) of the Act, which required the General Counsel to call Woodruff
and others to elicit testimony concerning his duties and functions. Woodruff’s testimony showed
that he satisfied several of the Section 2(11) indicia, including the authority to fire employees,
and to assign, direct, and oversee the workforce using independent judgment. The baseless
denial in the answer unnecessarily prolonged the hearing.
Throughout the hearing, Kelsey was warned and admonished several times for being
disrespectful to witnesses, the interpreter, and counsel for the General Counsel. For brevity’s
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sake, I reference only a few examples here. Only a few minutes into the hearing, he was
warned for being rude and discourteous after interrupting counsel for the General Counsel. (Tr.
6-7.) He proceeded to object to counsel’s questions before the question was asked. (Tr. 79-81.)
On more than one occasion, he interrupted the interpreter and questioned the interpretation of
the witness’ testimony. (Tr. 43, 72,102.) Several times, Kelsey was told to sit down, calm down,
be quiet, and to stop shouting. (Tr. 46,139,166-167,168.) He was also warned about being rude
and moving about when Counsel for the General Counsel was speaking. (Tr.139.)
Kelsey implied that witnesses were lying and referred to them as “snitches.” (Tr. 54, 56,
58-59.) He accused Elberto Vega of being a member of the reputed MS 13 gang. (Tr.105, 110.)
Kelsey was admonished for this conduct and was reminded that “[e]verybody who comes before
a proceeding of the National Labor Relations Board is due respect. Everybody.” (Tr. 284.)
He asked witnesses, like Irma Mercado and Elberto Vega, irrelevant questions, such as
where they currently lived, where they were currently employed, whether they were in the
United States legally, and what was their social security numbers. (Tr.51-52, 73-74, 103-104.)
Although he was repeatedly warned about asking irrelevant questions and about dragging out
the hearing, he nevertheless persisted in probing areas not relevant to the issues in the case.
(Tr. 76-77,124-126, 231, 233-234, 294-297.)
Kelsey was admonished for making off-the-cuff gratuitous remarks on the record. (Tr.
286-290.) He was also told on more than one occasion to stop “thanking” me each time I made
an evidentiary ruling favorable to the Respondent. (Tr. 47,173.) On the other hand, when I made
a ruling unfavorable to the Respondent, Kelsey became sarcastic and disrespectful and was
admonished more than once for doing so. (Tr. 164-165.) Ultimately, he was warned in very blunt
terms that his sarcastic and disrespectful conduct would no longer be tolerated. When various
telephone records were admitted into evidence over Kelsey’s objection, which was noted on the
record, he continued to press the issue, stating:
Mr. Kelsey: Everything else got in, so why stop now.
Judge Miserendino: Excuse me, sir.
Mr. Kelsey: I said everything else got in, why should we stop now.
Judge Miserendino: Mr. Kelsey, I have executed a lot of patience with you
in this hearing. You’ve made a lot of off-the-cuff, improper, disrespectful
remarks, and this is your last and final warning. One more outbreak from you,
whether it’s to me, it’s to counsel, it’s to the interpreter or a witness, and I’m
going to exclude you from the rest of this hearing, and I’m going to order your
company to get an attorney in here to represent the company for the rest of the
case. I’m not going to tolerate it any longer. Do you understand me?
Mr. Kelsey: I understand every word you’re saying, Your Honor.
Judge Miserendino: Well, I think you understand the full import of it also.
You just constrain yourself from here on out.
(Tr. 446.)
Kelsey was admonished for yelling and was told to calm himself. (Tr. 460.) He continued
to ask questions of little or no relevance to the issues of the case and was warned repeatedly to
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move to a relevant line of questions. (Tr. 464, 470-474, 490, 511, 523, 527-528.) He was also
warned about eliciting cumulative testimony. (Tr. 575.)
Eventually, Kelsey was excluded from the hearing. Board Rules § 102.77 (a). On the fifth
day of the hearing, which could have been, and should have been, a two-day hearing, Kelsey
was recalled by counsel for the General Counsel as a 611(c) witness. She asked Kelsey,
among other thing, to identify any wage records for Rick Sullivan that should have been
produced in response to the General Counsel’s subpoena request no. 9.13 After several minutes
of questioning, it became readily apparent that no wage records for Rick Sullivan had been
produced in response to the subpoena, a fact which Kelsey refused to acknowledge. (Tr. 675-
677.) His lack of candor, unnecessarily delayed the proceedings, and evoked the following
admonishment:
Judge Miserendino: Don’t get of[f] the issue. The issue is, you’re supposed
to tell us what’s in the file, and if the – you don’t have a document responsive
to the request, you should’ve said so a long time ago, and you didn’t do it.
Throughout this trial, Mr. Kelsey, you have consistently played games. You’ve
stalled, you’ve delayed, and this is just another example of it. Now, if you
can’t put your finger on something in any of those files because they don’t
exist, you ought to say so.
(Tr. 677.)
Several minutes later, counsel for the General Counsel asked Kelsey why he was not a
member of the Virginia Bar. Earlier in the proceedings, on day two, Kelsey testified, “I passed
the Virginia State Bar. I went to law school. I just elect not to practice currently.” (Tr. 342.) On
day five, Counsel for the General Counsel again asked him:
Q. Why aren’t you a member of the Virginia Bar?
A. I don’t know so much that there’s a reason, a particular reason.
Q. I’m sorry?
A. I withdraw my application?
Q. You withdrew your application. Any other reasons?
A. That’s it.
Q. Why did you withdraw your application?
A. I was having some personal issues at the time, and it was an uphill battle
to get through – I withdrew the application.
(Tr. 697-698.)

13 At the end of the second day of hearing, Kelsey was directed to review all of the records
that he, and he alone, as custodian of records produced in response to the subpoena, and to
label documents responsive to each subpoena request nos. 9 and 10, before leaving the
building for the day. (Tr. 346-348.)
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Counsel for the General Counsel then proffered documents which were admitted into
evidence showing that the Character and Fitness Committee of the Virginia Board of Bar
Examiners, after considering evidence and testimony presented at an administrative hearing,
recommended that the Virginia Board of Bar Examiners deny licensure to Kelsey because he
did not have “the current requisite honest demeanor and good moral character and fitness to
perform the obligations and responsibilities of a practicing attorney....” (GC Exh. 24 and 25.)
Upon receipt of this evidence, I called a recess to review carefully the Bar Examiners’
documents, reflect on the Kelsey’s false and misleading testimony, and to determine the
appropriate action to be taken in the context of what had transpired at the hearing over the past
several days.
A careful review of the Bar Examiners’ documents disclosed that the Character and
Fitness Committee had determined that, among other things, Kelsey intentionally failed to
disclose that he had been arrested and convicted for assault in the Henrico County General
District Court. In addition the documents reflected that Kelsey had a past history of hostile and
aggressive behavior, as well as a history of repeated acts of uncivil, inappropriate, and
unprofessional conduct in connection with the unauthorized practice of law. Having made the
decision to exclude him from the hearing based on his cumulative inappropriate conduct and his
false and misleading testimony, it became apparent to me, based on the Bar Examiners’
documents, that I was dealing with an emotionally unstable individual, who presented a potential
danger to those in the hearing room, and that a pronouncement of his exclusion from the
hearing could very well prompt an outburst accompanied by aggressive behavior. After calling
for the presence of a security officer, I reconvened the hearing and stated the following:
JUDGE MISERENDINO: Mr. Kelsey, from the outset of this hearing,
your conduct has been extremely questionable. You have interrupted
counsel on a number of times. You've interrupted the interpreter. You've
interrupted the witnesses. You've cut it short, and you've already -- and
you've yelled at me on numerous occasions. I've given you a number of
warnings and admonishments, and I've used that term and pointed out your
conduct. To a number of the witnesses, particularly the Hispanic witnesses,
you've used extremely derogatory comments pertaining to their demeanor.
You referred to them as liars. You accused Mr. Vega of being a murderer
and a member of a murderous gang. I think your conduct, as displayed
here this morning, with respect to the document production in response to
General Counsel's subpoena, shows that you went out of your way to delay
this process.
At the beginning of the trial, as I pointed out, it was necessary for me to
come in here and practically supervise turning over of documents that you
said you were going to turn over, to provide them in a manner that is
customary, identifying documents responsive to the request. You've
disregarded my directions with respect to the document production request
for 3 through 7. We had a discussion about the full force and affect of this
agency's subpoenas. You told me those documents were coming from New
York, they had arrived, they would be here by noon, they had to be reviewed
by counsel, so forth and so on, only to find out later that none of that was true
and that you weren't going to produce them. I think it's been very misleading.
I think your conduct has risen to the level of being contemptuous (sic).
And then we get here today, and in the course of discussion, the inquisition
with respect to your background with the Bar, you lie under oath. And I
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specifically remember, on Tuesday, counsel asking you the questions, and my
recollection of your testimony was that you passed the Bar and you didn't join
the Bar because you didn't want to be restricted by some of the restrictions
that attorneys have to abide by. We find that that's not true. I mean, I think
that was a very misleading statement. I'm excluding you from further
participation in this hearing on behalf of USA Remediation Services, Inc.
The corporation will be directed to obtain another representative, and
specifically someone who is familiar with the practice and procedures before
the National Labor Relations Board, and to do so by filing an appearance by
January 7th of 2005. I will issue an order to that effect. This trial will resume
on January the 24th, Monday at 9:00 a.m. And we will begin with the
Respondent's case-in-chief. And I mean 9:00 a.m. I don't mean 15 minutes
after 9:00 or 9:20 or 9:10. Another indication of, really, your lack of
responsiveness and extension of professional etiquette, not only to the
profession, but also to me as the judge in this case. So without further ado,
sir, I'm going to ask you to leave the building. Officer Tyrone will escort you
out and you're not to come back in.
We're off the record. I'll issue an order.
(Off the record.)
(Tr. 700-702.)
The next day, December 14, 2004, I issued an Order, which was properly served on
Respondent, explaining why Kelsey had been excluded from the hearing, and stating:
On December 6, 2004, David M. Kelsey, the Respondent’s vice president
and corporate director, a non-attorney, formally entered his appearance on
the record as the representative on behalf of the Respondent in these
proceedings. On December 13, 2004, after being formally warned and
admonished about his conduct on several occasions, David M. Kelsey was
excluded from further participation as the Respondent’s representative for
misconduct, including, but not limited to, repeatedly interrupting other counsel,
witnesses, and the interpreter; making derogatory comments to and about other
counsel and witnesses; refusing and failing to comply with my instructions;
engaging in conduct that was intended to unreasonably delay the trial; and lying
under oath in a witness capacity as custodian of records for the Respondent.
The Respondent shall select and appoint a new representative, who
has experience with the practices and procedures of the National Labor
Relations Board, and such representative shall enter a written appearance
in these proceedings on behalf of the Respondent by no later than January 7,
2005. The written appearance shall identify the case(s) before this Agency
that the representative has appeared or otherwise specify his/her experience with
the practices and procedures of the Board.
The trial in this case shall resume at 9:00 a.m., EST, January 24, 2005, in the
Division of Judges Hearing Room, 5th Floor, 1099 14th Street, N.W., Washington,
DC 20005.
(GC Exh. 26.)
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I. The Respondent’s Failure and Refusal to Appear
On January 7, 2006, no one entered a written appearance on behalf of the Respondent.
On January 24, 2006, no one appeared for the Respondent when the hearing reconvened. The
Respondent did not present a case-in-chief and it did not file a posthearing brief.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Laborers Mid-Atlantic Regional Organizing Coalition is not a labor organization
within the meaning of Section 2(5) of the Act.
3. Eric Woodruff and Rick Sullivan are supervisors within the meaning of Section 2(11)
of the Act.
4. Robert Garniga and Rick Sullivan are agents of the Respondent within the meaning
of Section 2(13) of the Act.
5. The Respondent violated Section 8(a)(1) of the Act by engaging in the following
conduct:
(a) Engaging in unlawful surveillance of employees, who were engaged in activity
protected by Section 7 of the Act.
(b) Coercively interrogating Miguel Carballo about his union membership.
6. The Respondent violated Section 8(a)(3) of the Act by discharging Miguel Carballo.
7. The foregoing unfair labor practices constitute unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully discharged Miguel Carballo, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from the date of discharge, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Special Remedy
Counsel for the General Counsel asserts that David M. Kelsey should be disciplined,
pursuant Board’s Rule § 102.21, for filing an answer which did not have good grounds for
support and which was interposed for delay and that he should be disciplined, pursuant to
Board’s Rule § 102.177(e), based on his bad faith conduct at trial. I agree, although it is
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questionable whether imposing discipline would deter similar future conduct by Kelsey, given his
history of dishonesty and inappropriate conduct as reflected in the Virginia Board of Bar
Examiners’ report. I shall submit the allegations of misconduct to the investigating officer under
Board’s Rule § 102.177(e). 675 West End Owners Corp., 345 NLRB No. 27, slip op. at 3 (2005).
Counsel for the General Counsel, and the Charging Party Coalition, also argue that the
extraordinary remedy of litigation fees and costs should be awarded under the “bad-faith”
exception to the American Rule on litigation costs. 675 West End Owners Corp., supra, slip op.
at 2-3 (August 2005); Lake Holiday Manor, 325 NLRB 469, 470 (1998). They assert two
grounds in support of this position. First, the Respondent’s defenses were frivolous because it
failed to appear and present a defense at the conclusion of the General Counsel’s case-in-chief.
As the General Counsel acknowledges, however, the Board considers a defense “frivolous”
when the position relies on testimony that presents no legitimate issue of credibility. Heck’s Inc.,
215 NLRB 765, 768 (1974). Through cross-examination of General Counsel’s 611(c) witness,
Eric Woodruff, the Respondent asserted its reasons for discharging Miguel Carballo, which were
discredited for the reasons stated above in III.C.4. Credibility Resolutions. Thus, on this basis,
no ground exists for granting the remedy.
Next, counsel for the General Counsel and the Charging Party Coalition assert that
litigation fees and costs should be awarded because the Respondent engaged in bad faith
conduct during the litigation that was intended to frustrate and delay the proceedings. I agree.
The Respondent denied allegations in the complaint pertaining to the commerce standard and
the supervisory status of Eric Woodruff and Rick Sullivan, which should have, and could have,
been admitted and which required the General Counsel to elicit evidence on these issues. It
also failed and refused to produce documents responsive to a valid subpoena request, and in
the process ignored my instructions, thereby unnecessarily delaying and extending the hearing.
In addition, ample evidence exists showing that the Respondent’s representative engaged in
bad faith conduct throughout the entire course of the hearing, which unnecessarily extended the
hearing, and resulted in the exclusion of the Respondent’s representative, David M. Kelsey.
Further, the Respondent ignored my Order by failing and refusing to appoint a replacement
representative and failing and refusing to appear and present its defenses as part of its case-in-
chief. I therefore find that Respondent shall reimburse the General Counsel and the Charging
Party Coalition the costs and expenses incurred by them in the preparation, presentation, and
conduct of the hearing, including reasonable counsel fees, salaries, witness fees, transcript and
record costs, interpreter’s fees and costs, printing costs, travel expenses and per diem, and
other reasonable costs and expenses, all such costs to be determined at the compliance stage
of this proceeding.
Finally, the Charging Party Coalition seeks on the ground of “frivolous defenses,”
compensation for excess organizational costs involving the subsequent picketing of the
Respondent at the Quantico Marine Corps Base and other jobsites. Because the “frivolous
defenses” issue necessarily involved a credibility resolution, as noted above, I find no basis for
granting this remedy to the Charging Party Coalition.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, USA Remediation Services, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Engaging in unlawful surveillance of its employees.
(b) Coercively interrogating employees about their union membership.
(c) Discharging Miguel Carballo because he engaged in union and protected concerted
activity.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Miguel Carballo, full reinstatement to
his former position or, if such position does not exist, to a substantially equivalent position with
substantially equivalent pay, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Miguel Carballo, whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the manner set forth in the remedy section of the
decision.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including any electronic copy of such records if
stored in electronic form, necessary to analyze the amount of back pay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its facility in Warrenton, Virginia,
copies of the attached notice marked “Appendix”15 in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region 5, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In addition, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since July 1, 2003.

15 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
(g) Pay to the General Counsel and the Charging Party Coalition, the costs and
expenses incurred by them in the preparation, presentation, and conduct of the hearing,
including reasonable counsel fees, salaries, witness fees, transcript and record costs,
interpreter’s fees and costs, printing costs, travel expenses and per diem, and other reasonable
costs and expenses, as determined at the compliance stage of this proceeding.
Dated Washington, DC March 15, 2006
_____________________
C. Richard Miserendino
Deputy Chief
Administrative Law Judge
JD–20–06
Warrenton, VA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate our employees about their union membership.
WE WILL NOT engage in surveillance of our employees, while they participate in union and
protected concerted activity.
WE WILL NOT discharge Miguel Carballo because he talked to other employees about the
Union during lunch breaks and because he engaged in union and protected concerted activity.
WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL NOT engage in bad faith conduct in any proceeding before the National Labor
Relations Board.
WE WILL, within 14 days from the date of the Board’s Order, offer Miguel Carballo full
reinstatement to his former position, and if such position does not exist, to a substantially
equivalent position with substantially equivalent pay, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL, make Miguel Carballo, whole for any loss of earnings and other benefits suffered as
a result of our unlawful discrimination against him on July 11, 2003, less any net interim
earnings, plus interest.
JD–20–06
Warrenton, VA
WE WILL, pay to General Counsel and the Charging Party Coalition the costs and expenses
incurred by them in the preparation, presentation, and conduct of the hearing, including
reasonable counsel fees, salaries, witness fees, transcript and record costs, interpreter’s fees
and costs, printing costs, travel expenses and per diem, and other reasonable costs and
expenses, all such costs to be determined at the compliance stage of this proceeding.
USA REMEDIATION SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.