Valley Slurry Seal Co.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 233 (N.L.R.B. 2004)

VALLEY SLURRY SEAL CO.
343 NLRB No. 34
233
Valley Slurry Seal Company and Construction and
General Laborers’ Local 185; Northern Califor-
nia District Council and Laborers International
Union Organizing Department, Inc; Laborers
International Union of North America, AFL–
CIO and Northern California District Council of
Laborers; and Laborers International Union
Organizing Department, Inc; Laborers Interna-
tional Union of North America, AFL–CIO.
Cases 20–CA–30721–1, 20–CA–30721–3, 20–CA–
30721–4, 20–CA–30721–5, and 20–CA–30973,
September 30, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On December 12, 2003, Administrative Law Judge
Burton Litvack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2 to
modify the remedy,3 and to adopt his recommended Or-
der as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Valley
Slurry Seal Company, Sacramento, California, its offi-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We disagree with the judge’s finding that the Respondent violated
Sec. 8(a)(1) of the Act when, after finding a union handbill on his truck,
Foreman Anson Jones “said that if that asshole puts any more shit on
my windshield, I’m going to kick his ass.” We find that, considering
all the circumstances, Jones’ remark would reasonably have been un-
derstood by employees as a personal, subjective reaction, and not as a
communication by the Respondent. Therefore, we find it unnecessary
to reach the issue of whether Jones was an agent of the Respondent.
Accordingly, we dismiss this allegation of the complaint.
Member Walsh would adopt the judge’s finding of a violation for
the reasons stated in the judge’s decision.
3 We modify the judge’s remedy to provide that backpay for em-
ployee Jimmy Isaacs shall be computed as prescribed by Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as computed according to New Horizons for the
Retarded, 283 NLRB 1173 (1987).
4 We shall modify par. 2(a) of the judge’s recommended Order to
conform to the Board’s standard remedial language.
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(f) and reletter the subsequent
paragraphs.
2. Substitute the following for paragraph 2(a).
“(a) Make John Michael Shawn Emminger, Frank Set-
tecase, Eric Henderson, Patrick McQuerry, and Jimmy
Isaacs whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner proscribed in the remedy section of this deci-
sion.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 interrogate our employees with regard to
their union sympathies or activities.
WE WILL NOT threaten our employees that selecting
Construction and General Laborers’ Local 185, Laborers
International Union of North America, AFL–CIO (La-
borers Local 185) as their bargaining representative
would result in harsher working conditions, including
loss of subsistence pay.
WE WILL NOT prohibit our employees from discussing
their terms and conditions of employment with their fel-
low employees or threaten to retaliate against them for
such acts.
WE WILL NOT inform our employees that reductions in
their terms and conditions of employment resulted from
their support for Laborers Local 185.
WE WILL NOT threaten our employees with adverse
consequences to their terms and conditions of employ-
ment, including reduced wages and benefits, because of
their support for Laborers Local 185.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD234
WE WILL NOT increase the amount of our daily subsis-
tence pay to employees for work outside the Sacramento
area in order to induce them to stop supporting Laborers
Local 185.
WE WILL NOT lay off our employees because of their
activities in support of Laborers Local 185.
WE WILL NOT eliminate the subsistence pay and, subse-
quently reinstate such pay at a reduced rate, of our em-
ployees in retaliation for their relatives’ and our employ-
ees’ support for Laborers Local 185.
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 Act.
WE WILL make John Michael Shawn Emminger, Frank
Settecase, Eric Henderson, Patrick McQuerry, and
Jimmy Isaacs whole for any wages and benefits lost, with
interest, as a result of our discrimination against each of
them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to our
unlawful layoffs and cessation of subsistence pay and,
WE WILL, within 3 days thereafter, inform the above-
named individuals that such has been done and that our
unlawful actions will never be used against them in any
way.
VALLEY SLURRY SEAL COMPANY
Lucile L. Rosen, Esq., for the General Counsel.
Robert L. Rediger, Esq. and Laura C. McHugh, Esq. (Rediger,
McHugh & Hubbert, LLP), of Sacramento, California, ap-
pearing on behalf of the Respondent.
Antonio Ruiz, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld),
of Oakland, California, appearing on behalf of the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Construction
and General Laborers’ Local 185, Laborers International Union
of North America (Laborers Local 185) filed the original unfair
labor practice charge in Case 20–CA–30721–3 on August 27,
2002,1 and the first amended and second amended unfair labor
practice charges in Case 20–CA–30721–3 were filed by North-
ern California District Council of Laborers (NCDCL) and La-
borers International Union Organizing Department, Inc.
(LIUOD) on September 5 and October 25, respectively. Labor-
ers Local 185 filed the original unfair labor practice charge in
Case 20–CA–30721–4 on August 27, and NCDCL and LIUOD
filed the first amended and second amended unfair labor prac-
tice charges in Case 20–CA–30721–4 on September 5 and Oc-
tober 25, respectively. Laborers Local 185 filed the original
unfair labor practice charge in Case 20–CA–30721–5 on Au-

1 All dates herein occurred during calendar year 2002, unless other-
wise stated.
gust 27, and NCDCL and LIUOD filed the first amended and
second amended unfair labor practice charges in Case 20–CA–
30721–5 on August 27 and October 25, respectively. Based
upon investigations of the unfair labor practice charges in Cases
20–CA–30721–3, 20–CA–30721–4, and 20–CA–30721–5, on
October 31, 2002, the Regional Director for Region 20 of the
National Labor Relations Board (the Board) issued a consoli-
dated complaint, alleging that Valley Slurry Seal Company
(Respondent) had engaged in, and continues to engage in, un-
fair labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). NCDCL and
Laborers International Union of North America (LIU) filed the
original and first amended unfair labor practice charges in Case
20–CA–30721–1 on June 14 and January 30, 2003, respec-
tively, and NCDCCL and LIU filed the original and first
amended unfair labor practice charges in Case 20–CA–30973
on December 4, 2002, and January 30, 2003, respectively.
Based on investigations of the unfair labor practice charges in
Cases 20–CA–30721–1 and 20–CA–3073, on February 12,
2003, the Regional Director for Region 20 of the Board issued
a consolidated complaint, alleging that Respondent had en-
gaged in, and continues to engage in, unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act. Re-
spondent timely filed answers to both consolidated complaints,
essentially denying the commission of any of the alleged unfair
labor practices. Pursuant to notices of hearing, the above-
captioned matters came to trial before me in Sacramento, Cali-
fornia, on April 1 and 2 and June 10, 2003. At the trial, I
granted counsel for the General Counsel’s motion that the
above-captioned matters be consolidated for trial, and I af-
forded all parties an opportunity to examine witnesses, to cross-
examine witnesses, to offer into the record all relevant docu-
mentary evidence, to argue their legal positions orally, and to
file posthearing briefs. The latter documents were filed by
counsel for the General Counsel and by counsel for Respon-
dent, and each has been carefully considered.2 Accordingly,
based upon the entire record herein, including the posthearing
briefs and my observations of the testimonial demeanor of each
of the several witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation, with an of-
fice and place of business in Sacramento, California (Respon-
dent’s facility), has been engaged in the building and construc-
tion industry, performing pavement preservation work. During
the calendar year 2001, which period is representative, in the

2 Counsel for Respondent filed a motion to strike portions of the
counsel for the General Counsel’s posthearing brief, and the latter filed
an opposition to the motion. I note, at the outset, that counsel for the
General Counsel did, in fact, misstate portions of the record in her
posthearing brief. However, inasmuch as I engage in an independent
analysis of the record and do not rely upon counsel, in their posthearing
briefs, in order to formulate an accurate version of events and as I am
more concerned with the legal arguments of counsel rather than with
their recitations of fact, I see no purpose to strike any portion of counsel
for the General Counsel’s posthearing brief and shall deny counsel for
Respondent’s motion.
VALLEY SLURRY SEAL CO. 235
normal course and conduct of its business operations, Respon-
dent performed services, valued in excess of $50,000, for vari-
ous cities and counties in the State of California, each of whom
meets a Board standard for the assertion of jurisdiction on a
direct basis. Respondent admits that, at all times material, it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, Laborers Local
185 has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ISSUES
The consolidated complaints allege that Respondent violated
Section 8(a)(1) and (3) of the Act by laying off its employee,
John Michael Shawn Emminger, from May 13 until June 3
because of his support for Laborers Local 185; by laying off its
employees, Frank Settecase, Eric Henderson,3 and Patrick
McQuerry,4 from August 22 through late September because of
their support for Laborers Local 185; and by eliminating subsis-
tence pay to its employee, Jimmy Isaacs, from on or about July
2 until the first week of August and, in or about the first week
in August, reinstating his subsistence pay at a reduced rate be-
cause of his support for Laborers Local 185. Further, the con-
solidated complaints allege that Respondent violated Section
8(a)(1) of the Act by threatening its employees with the elimi-
nation of subsistence pay if they selected Laborers Local 185 as
their collective-bargaining representative; by threatening its
employees with the elimination of subsistence pay, medical
benefits, uniforms, and with the loss of work and reduced
wages if they selected Laborers Local 185 as their collective-
bargaining representative; by threatening its employees that it
might close its operation if they selected Laborers Local 185 as
their collective-bargaining representative; by threatening its
employees with physical violence if they distributed Laborers
Local 185 flyers; by telling employees not to talk about wages
and other benefits or they would by laid off for lack of work; by
interrogating its employees concerning their activities in sup-
port of Laborers Local 185; by threatening its employees with

3 Henderson testified on the first day of the trial; however, after he
stated he was not able to understand counsel for the General Counsel’s
questions because he had been taking an increased dosage of a stress-
reduction medication, I excused him from continuing to testify that day
but with the understanding he would have to resume testifying when he
became adjusted to his medication. Accordingly, the hearing was con-
tinued to a later date. On that day, June 10, 2003, notwithstanding
having assured counsel for the General Counsel he would be present,
Henderson failed to appear. In these circumstances and as he was not
subjected to cross-examination, I granted counsel for Respondent’s
motion to strike his trial testimony.
4 This appears to be the correct spelling of his name. Although
served with a subpoena, as he “was thinking about” visiting his family
in Mexico rather than testifying in his own behalf, McQuerry failed to
appear and testify at the trial. Of course, it is clear Board law that an
alleged discriminatee need not appear at the hearing and testify in his or
her behalf. If evidence of a violation of Sec. 8(a)(1) and (3) of the Act
is established, he or she is entitled to a remedy despite failing to appear.
Kajima Engineering & Construction, 331 NLRB 1604 (2000).
the elimination of subsistence pay if they spoke to other em-
ployees about such pay; by telling employees their subsistence
pay had been eliminated because of Laborers Local 185; and by
increasing its employees’ daily subsistence payments from $50
to $57 per day in order to induce them to cease supporting La-
borers Local 185. While essentially denying the commission of
the alleged unfair labor practices, Respondent contends that it
laid off Emminger for legitimate business reasons, laid off Set-
tecase, Henderson, and McQuerry for lack of work, increased
its employees subsistence payments after conducting a survey,
and eliminated Isaacs’ subsistence after announcing a change in
its subsistence pay practices.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a corporation, is a wholly owned subsidiary of
Basic Resources Corporation and maintains an office and a
yard/maintenance facility located in Sacramento, California.
The record establishes that Respondent is engaged in the build-
ing and construction industry as a “pavement maintenance
company,” primarily5 performing pavement resurfacing work
for State of California, county, and city agencies; that its pri-
mary product is a slurry seal, which is composed of aggregate
and emulsion and which is used to resurface existing asphalt
pavements on highways, streets, and roads; that Respondent’s
other products include a derivative of slurry seal, called micro-
surfacing, which, when applied to asphalt, dries much quicker
than slurry seal, and seal coating, which is typically used to
resurface and rejuvenate parking lots; that, given the nature of
its product, which requires dry surfaces, and, given the normal
California weather pattern of winter rains, Respondent’s yearly
business is seasonal, normally starting in March or April and
ending with the first heavy rains in November or December;
that, during 2002, Respondent’s business operations were con-
centrated in the northern California area;6 and that, during a
typical season, Respondent utilizes three to five slurry seal
crews, one seal coating crew, and one paving crew to perform
its work. The record further establishes that, at all times mate-
rial herein, Jeffrey Reed has been the president of Respondent,
Michael Heath has been its general superintendent and opera-
tions manager, and Mike Wallen has been its project superin-
tendent and that Respondent admits that each has been a super-
visor within the meaning of Section 2(11) of the Act and its
agent within the meaning of Section 2(13) of the Act. Finally,
as set forth above, Respondent utilizes crews of employees to
perform its work, which may be hundreds of miles from Re-
spondent’s facility in Sacramento. There are between 7 and 12
employees on each of Respondent’s crews, which are com-
prised of an operating foreman, who operates the machine
which produces and dumps the resurfacing material on the
ground and who directs the work of the crew, squeegeemen,

5 Perhaps 15 percent of Respondent’s work is for private entities.
6 Apparently, at least through 2001, Respondent maintained an of-
fice, had crews of employees, and regularly performed paving work in
the southern California area. Commencing in 2002, all of Respondent’s
employees were based in northern California, and it only occasionally
bid upon and worked on jobs in southern California.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD236
whose job is to smoothly and evenly spread the sealant material
over the entire area being resurfaced, using an implement akin
to a long-handled broom, traffic control workers, whose job is
to set the cones and barricades, closing the area, which is being
resurfaced to vehicle and pedestrian traffic, shuttle drivers, who
bring the resurfacing material to the jobsite, and stockpilers,
who unload the resurfacing material from the trucks and load
said material into the resurfacing machine.
The record reveals that, in the first week of May 2002, Jerry
Morales, the director of organizing for the NCDCL, paid an
unannounced visit to Respondent’s office in Sacramento and
met with Jeffrey Reed in a conference room. During their
meeting, Morales informed Reed that, inasmuch as the LIU had
been successful in organizing Respondent’s competitors in
southern California, “we would be talking to his workers again
to accept the agreement of the current time.”7 Further, Morales
told Reed, “[T]hat I had already spoke to some of his workers”
and that “I would be talking to the rest of his workers.” Also,
Morales said that, given the new southern California collective-
bargaining agreement, “we would like to be able to do this up
here and he is one of the biggest contractors up here . . . . He
indicated . . . that he had several problems,” including an earlier
organizing campaign by the Operating Engineers Union
“against some family members.” That campaign had culmi-
nated with the union winning an election but being unable to
secure a collective-bargaining agreement. Morales replied that
the LIU was not the Operating Engineers. To this, Reed be-
seeched Morales to speak to his employees “as he did not have
a problem with that.” Morales said that what the LIU wanted
was to have Respondent agree to recognize it as its employees’
bargaining representative and to sign a collective-bargaining
agreement, and Reed responded, “[G]o talk to my guys and
we’ll talk about that later.” Subsequently, according to
Morales, on or about May 10, while he was having lunch with
other NCDCL officials in the downstairs area of the Rusty
Duck restaurant in Sacramento, Reed, who was present at the
restaurant for a delayed Christmas party for his Company’s
employees,8 approached his table and, after saying their meet-
ing was quite a coincidence, “asked that I not do anything that
would in any way ruin the Christmas party, and my statement
. . . was I’ve already told you I will be talking to your people,
but I’m not here to destroy any Christmas party or anything like
that.” With regard to the party, according to alleged discrimi-
natee, Frank Settecase, during a speech to the assembled em-
ployees, Reed mentioned Laborers Local 185, saying the labor
organization “wouldn’t be in our best interest as a company.”9

7 According to Morales, the LIU had reached a collective-bargaining
agreement with “most” of the slurry seal contractors in southern Cali-
fornia, and, concomitant with this agreement, Respondent ceased its
operations in southern California.
8 The record discloses that Respondent had held Christmas parties
for its employees in the past but always during December.
9 In her posthearing brief, counsel for the General Counsel attributes
other comments to Reed and asserts that the comments are “relevant” to
Respondent’s knowledge of the LIU’s organizing efforts and Respon-
dent’s subsequent acts and conduct. However, she failed to cite to the
portion of the transcript at which Reed’s words are found, and my own
Alleged discriminatee John Michael Shawn Emminger testi-
fied that, upon being informed of a job opening by his stepfa-
ther, Jimmy Isaacs, on May 25, 2001, he applied for a job with
Respondent and was hired by Mike Wallen, Respondent’s pro-
ject superintendent, as a traffic control employee on a crew,
working in the Santa Barbara area.10 Emminger, who resides in
Barstow, California,11 worked on that job until early January
2002 when Wallen informed him his work “was done for that
year.” According to Emminger, he learned that Respondent’s
2002 season had commenced from Isaacs, who told Emminger
that “he [had been] contacted and told to come back. He asked
about me and was told to bring me along.” Thereafter, in early
April, he reported for work “at the yard in Sacramento,” was
assigned to the slurry seal crew, for which Anson Jones was the
operating foreman, as a traffic control worker, and, during that
month and May, worked on jobs in Merced and in Sacramento.
Emminger further testified that, upon receiving his first pay-
check for 2002, he noticed that his rate of pay had been reduced
to $15 per hour, and he immediately placed a telephone call to
Mike Wallen, who was not available and who failed to return
the telephone call. However, shortly thereafter, on April 30,
while working on a jobsite in Sacramento, Emminger saw
Wallen, approached, and “I . . . asked him about my pay cut,
and he said he’d look into it.” A “few” days later, on a jobsite
next to McKinley Park in downtown Sacramento, with Jimmy
Isaacs standing next to him, Emminger again spoke to Wallen
and asked the latter if he had learned anything about why his
(Emminger’s) base pay had been reduced. “He said, yes. He
told me that my pay was cut to $15 per hour” and “to be lucky
it was that much.” Wallen added that “base pay for traffic con-
trol is $8 per hour and that my subsistence was being cut as
well.” Wallen continued, saying, “[T]he subsistence would not
be for weekends . . . I was not there to work.”12 He added
“that the company would provide a vehicle for transportation to
and from work on those non-work weekends. And that if I was
to tell anybody, I’d be laid off for lack of work.”13 When spe-

scrutiny of the record does not disclose their source. In these circum-
stances, I am unable to make findings as to Reed’s asserted comments.
10 Emminger earned $17 per hour for this work and received medical
benefits. Also, he was given 13 sets of uniforms, consisting of an or-
ange shirt, with a company logo, and brown pants. According to the
alleged discriminatee, he was required to pay for the uniforms by de-
ductions from his paychecks. In addition, Emminger received a $30-
daily subsistence payment, working for Respondent in Santa Barbara.
11 Barstow is located in southern California.
12 The record establishes that Respondent makes a $50-daily subsis-
tence payment to its employees, who are working more than 75 miles
from Sacramento. In addition, when Respondent closed its southern
California operations, at least five employees, who lived in southern
California, continued to work for it in northern California, and, through
July 2002, in order to retain these individuals, Respondent made daily
$50-subsistence payments to these employees notwithstanding whether
they worked within 75 miles of Sacramento.
13 When shown R. Exh. 1, a document entitled “Employer Property
Return Agreement,” which bears his signature and which appears to be
a receipt for items received, including a Nextel “flip phone,” Emminger
testified that he recognized “most of it” but not the three paragraphs
between the listed items and his signature. He added that those were
not on the document at the time he signed it.
VALLEY SLURRY SEAL CO. 237
cifically asked about this conversation, Isaacs could only recall
Wallen saying that Respondent “would not be giv[ing] this
weekend subsistence any more unless we were working the
weekend.”14
According to Emminger, having become aware during the
2001 work season that a union had once represented Respon-
dent’s employees, in March, prior to reporting for work with
Respondent the following month, he telephoned a LIU local
union’s office in southern California and was put in contact
with Jerry Morales. Thereafter, Emminger testified, after
commencing work with Respondent in April, he and Isaacs met
with Morales at a restaurant in west Sacramento, and Em-
minger agreed to speak to other employees about representation
by the LIU and to solicit them to sign authorization cards on
behalf of the LIU. Morales gave Emminger authorization
cards, and the latter testified that he subsequently spoke to ap-
proximately 20 of Respondent’s employees, soliciting their
support for the Laborers and their signatures on the authoriza-
tion cards. According to Emminger, these conversations al-
ways occurred in the evening “after work in public places.” He
was careful not to permit “anyone” to observe his solicitations,
and he never noticed any managers engaging in surveillance of
his activities on behalf of the LIU.
Emminger testified that, pursuant to Wallen’s early May of-
fer, when no work was scheduled, he utilized a company truck
to make round trip weekend visits to Barstow “two or three
times,” that each way was a 7-hour drive, and that he used a
company gas card to pay for gasoline.15 One such trip to south-
ern California was over the weekend of May 9 through 12, and
he reported for work with the truck early in the morning on
May 13. A job that morning was scheduled to commence at 8
a.m. in Sacramento, and, while driving toward the jobsite, Em-
minger called Wallen on a company-issued cellular telephone
in order to confirm information, which he had received from a
company mechanic, who told him that no company vehicles
were allowed for use on personal trips outside the Sacramento
area. He asked Wallen if this information was correct, and
Wallen replied, “[Y]es, that’s right. My foremen are allowed to
drive company vehicles for non-work use.” Then, according to
Emminger, Wallen “asked me if I had contacted the Union or
had they contacted me. . . . I told him no . . . I had not contacted
or been contacted by the Union.” Emminger further testified
that, approximately 2 hours later, between 10 and 11 a.m.,
while he was working, Wallen telephoned him. “He told me
that I would no longer be needed in Sacramento for the rest of
the week . . . due to the fact that jobs had been postponed” and

14 Shown R. Exh. 1 during direct examination, Isaacs testified that he
signed and dated a similar document in June 2000, but that he did not
remember the three paragraphs between the listed items and his signa-
ture. However, during cross-examination, after being shown the two
property receipt forms, which he signed and which contain the same
three paragraphs as are in R. Exh. 1, Isaacs admitted that his prior tes-
timony “had to have been” in error.
15 Of course, this testimony makes no sense. Thus, by Emminger’s
own account, Wallen did not give him permission to use a company
vehicle for weekend trips home until early May. As Emminger was
laid off on May 13, he could not have used the company vehicle to
make two or three weekend trips home.
“that I would be contacted with flight information for a flight to
[go] back home.”16 Emminger returned to Barstow, and, 2 days
later, telephoned Wallen and asked if there was any work.
Wallen said no as there were “more than enough people for a
weekend job.” Wallen added that Emminger was “kind of laid
off” but should call back at a later date. On the following Sun-
day, the alleged discriminatee again telephoned Wallen about
the availability of work, and the latter said that Respondent
probably would not need Emminger again until July or later
and that he should consider himself laid off. Subsequently, at
the end of May, Wallen telephoned Emminger and instructed
him to report to Respondent’s office in Sacramento on June 3
“ready for work.” However, when, as instructed, the alleged
discriminatee arrived at Respondent’s office on the morning of
June 3, he was taken into a conference room in which Wallen,
Mike Heath, and Jeffrey Reed’s secretary were waiting.
Wallen and Heath began questioning Emminger about his use
of the company gas card for three weekend trips to and from
Barstow and then informed him that, as he had “abused” the
company gas card, he was being suspended “pending an inves-
tigation” of his personal use of the credit card on a personal
vehicle for approximately 3 weeks.17
With regard to the layoff of the alleged discriminatee, Mike
Wallen testified that Emminger and Jimmy Isaacs18 were re-
called for work in April 2002 in accord with Respondent’s
practice to “bring as many employees back on board primarily
so they don’t go out and find other jobs, trying to keep crews
staffed is sometimes a bit of a problem, but if we keep them
busy, we know they are going to stick around.” Emminger was
placed on Anson Jones’ crew, which performed work on jobs in
Merced and Sacramento. In the first week of May, according to
Wallen, he spoke to Jones’ crew in a group setting, and, as
“they were are [sic] always interested in when and where is the
next job,” he informed them “that there was [a] lack of work
coming up.” Wallen further testified that the next job for
Jones’ crew was a job in Redding, which required just six or
seven employees; “Emminger had been in town away from his
family since early April, and we tried to get all of our crew-
members, if we are out of town, back to their family members
every other week. Since he had been away the longest, we sent
him home.” Thereafter, according to Wallen, there was just a
1-day job in Redding, a 2-day job in Sacramento, and “with
nothing following after that, I didn’t see it necessary to bring
Mr. Emminger up for two days and then send him back

16 Emminger did not know of any other employees, who were sent
home that day.
17 According to Emminger, Alan Berger, Respondent’s vice presi-
dent, had given the fuel card to him at the time of his hire. The first
sentence of the second of the disputed paragraphs on R. Exh. 1 reads “I
also agree that any and all credit card purchases shall be for the benefit
of [Respondent] only, and at no time will I use a company credit [sic]
issued credit card for my personal use and/or benefit.”
18 Isaacs possesses a class A commercial driver’s license, permitting
him to drive a truck. According to Wallen, “[T]hat’s actually a priority
in our line of work.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD238
home.”19 Wallen, who denied being aware Emminger had
signed a union authorization card or laying off the alleged dis-
criminatee because of his support for the LIU, further testified
that, at the time he laid off Emminger,20 his intent was to recall
him when work became available, and “I requested him to call
me to keep checking when we would be going back to work.”21
During cross-examination, Wallen testified that the decision to
lay off Emminger was a joint one by Michael Heath and him-
self “probably during the week before we laid him off” because
“he had been working in the Sacramento area since April. It
was decided that he go home; we didn’t have any more work
out there for Mr. Jones’ crew, so we elected to send Mr. Em-
minger home . . . to see his family.” Asked why Emminger was
selected for layoff rather than others on Jones’ crew, Wallen
said, “[H]e had been working more consistently than some of
the others.” He added that the decision was not “based on
hours” but, rather, on “time away from the family.” On this
point, while maintaining the layoff was to afford Emminger
more family time, Wallen admitted never asking Emminger
about this.
Wallen further confirmed having two conversations with
Emminger. He recalled one conversation in April at McKinley
Park in Sacramento.22 According to him, “[W]e had closed our
Southern California operation and, in order to keep employees
in Northern California, we made a company decision that all
employees would be based in Northern California.” As these
employees only receive subsistence when working “out of the
Sacramento area” and as the pay rates are different, Emminger
“was informed that he was in Northern California and as an
employee would be treated as such.” Wallen denied saying this
was because of Emminger’s activities on behalf of the LIU or
that he warned Emminger if he told anyone about a subsistence
cut or pay cut, he would be laid off. Next, Wallen recalled a
conversation with the alleged discriminatee in May subsequent
to the latter’s layoff. According to him, Emminger “stat[ed]
that he would inform me if the [sic] had any contact with the
union . . . I said that’s fine.”
There is no dispute that, on a Sunday early in June, Respon-
dent’s management officials, Reed and Heath, conducted a
meeting with the Company’s employees in the yard of Respon-
dent’s facility in Sacramento. Present were the 11 employees,
including alleged discriminates Isaacs, Henderson, McQuerry,

19 R. Exh. 4, the work schedule for Respondent’s crews from March
through August, corroborates Wallen regarding the paucity of work for
Jones’ crew in May through mid-June.
Counsel for the General Counsel offered no evidence or contends
that R. Exh. 4 was inaccurate or had been fabricated.
20 Wallen testified that Respondent’s criteria for layoff include
whether the employee has either a class A or a class B driver’s license.
Such employees have the highest priority to be retained. Then, Re-
spondent considers the employee’s skills and job experience. Finally,
Respondent will consider job tenure.
21 Wallen admitted that, in conversations with Emminger subsequent
to his layoff, he told the alleged discriminatee that he had “more than
enough people” and that “that it would be mid June before Mr. Jones’
crew started up again.”
22 He later changed his testimony, stating the conversation was in
May.
and Settecase, on Anson Jones’ slurry seal crew23 and the em-
ployees on another crew. Reed announced to the gathered em-
ployees that Heath would like to address them, and the latter
proceeded to speak for approximately 20 minutes. According
to Frank Settecase, who stated the Jones’ crew employees were
preparing for a job in Merced, Reed’s speech “seemed to be
centered around Union activities.” He said that “the [Laborers]
wasn’t any good, particularly the Local 185. And that if we did
go Union, the company could drop our wages to $8 per hour
and we wouldn’t get uniforms, and subsistence wouldn’t be
included when we worked out of town.” Also, Heath spoke
about “safety on the freeway.” Further, after having his mem-
ory refreshed with a leading question, Settecase also recalled
Heath saying, “[T]hat the company would close their doors
before they’d go union.” Regarding Heath’s warning about
reducing the employees’ wages, Settecase initially reaffirmed
his testimony; however, when asked by Respondent’s attorney
if Heath said wages may be cut, Settecase said, “Uh-huh.”
Further, as to Heath’s threat that Respondent would close its
doors, during cross-examination, asked if Heath said the em-
ployer’s might close its operations if the employees went to the
LIU, Settecase responded, “Yes.” Jimmy Isaacs also recalled
Heath’s comments during this meeting, stating, Heath “talked
about if we . . . went union that . . . we could get a reduced pay.
We could lose our uniforms. We could lose our medical.
Things of that nature.” During cross-examination, Isaacs was
unable to remember Heath saying the employees’ rates of pay
would be reduced to $8 per hour. As to whether Heath warned
that Respondent would have to close its doors, Isaacs testified,
“It seems like he did but I cannot say one hundred percent posi-
tive.” However, after being shown his pretrial affidavit in
which he wrote he did not recall Heath saying Respondent
would close its doors, Isaac changed his testimony, stating, “I
don’t remember him saying that.” While failing to testify as
what he did say to the employees during his speech, Heath
specifically denied saying Respondent could drop its employees
wages to $8 per hour if they selected the LIU as their bargain-
ing representative or threatening that Respondent would close
its doors before it went union.
The consolidated complaints allege that operating foreman,
Anson Jones, has been, at times material herein, a supervisor
within the meaning of Section 2(11) of the Act and Respon-
dent’s agent within the meaning of Section 2(13) of the Act and
that, on behalf of Respondent, he engaged in several violations
of Section 8(a)(1) of the Act. At the outset, I note that Respon-
dent’s slurry seal and other crews sometimes work on jobsites
in excess of 100 miles from the Company’s Sacramento facility
and that the operating foreman is charged with the responsibil-
ity for completing the assigned job according to the production
schedule.24 Jones, who, the record reveals, is salaried and

23 According to Frank Settecase, these included Ivan _______, Mike
_______, Sam ________, Jimmy Isaacs, Martine __________, An-
thony _________, Antonio ________, Eric Henderson, Patrick
McQuerry, and himself.
24 In this regard, Mike Wallen testified that he is unable to be on
every job every day and relies upon the operating foreman to “continue
production,” and Anson Jones testified that, for jobs, he is responsible
for meeting with clients or inspectors, and “they would complain to me
VALLEY SLURRY SEAL CO. 239
earns, at least, three times as much per quarter as any employee
on his crew,25 testified that, in his capacity as an operating
foreman, he possesses no authority to hire, to fire,26 to disci-
pline, to permit employees to leave jobs early,27 to give raises,
or to recommend the giving of raises, to employees on his crew.
Rather, “I show up at a job site and get our equipment ready to
lay slurry and make sure everybody has all their stuff and get
them out on the job and do the job. . . . I operate the back of the
machine that makes the slurry that we put on the ground.” In
the latter regard, Jones works on the machine “however long it
takes us to get the job done,” and he will sometimes work with
the job tools for “probably maybe fifteen minutes” during a
day. Also, according to Jones, employees telephone him if they
are going to be late for work, and he initials the employees’
timesheets on a daily basis. Further, while Jones is nominally
in charge of his crew, he speaks to Wallen typically “sometimes
several times a day” depending upon the number of “problems
that are coming up.”28 Finally, Jones testified that he will in-
form Wallen as to whether an employee is able to perform the
required work, and Wallen confirmed this, stating that the oper-
ating foremen “don’t make recommendations; they just tell me
if they think . . . [employees have] what it takes to do the job.”
The dispute regarding the extent of Jones’ supervisory au-
thority is concentrated upon two points—whether he responsi-
bly directs the work of the employees on his crew and whether
he is authorized to approve payment for 8 hours of work in a
day for employees, who have not worked that number of hours.
With regard to the assigning of work, Frank Settecase, a squee-
geeman on Jones’ crew, testified that Jones assigns him to a job
each day and tells him to stop working one job and to start an-
other, if necessary. However, when asked, by me, if employees
know their jobs on any particular jobsite, Settecase, who testi-
fied that Jones decides which employee will work overtime if
such is necessary, replied, “Yes, I would know that I was going
to be squeegee.” On this identical point, Jimmy Isaacs testified,
“We had our assigned works. I was a driver. So I pretty much
knew what I had to do. But it was Anson Jones who gave . . .
the work orders on who did what.” With regard to authorizing

first and then if it was something that I could fix, we would fix it then.
If not . . . I would call the office and find out what to do.” Also, unlike
other employees, Jones is given a company credit card for the purchase
of water or tools if necessary.
Wallen testified that he regularly receives input from his foremen as
to whether employees are doing a “good job” or not. Also, if an “issue”
arises with an employee, Jones will speak to him, and then Wallen will
come to the jobsite and speak to the employee involved.
25 Although he has never received a bonus payment, Jones believed
he is eligible for bonus payments if Respondent is performing well.
Jones professed a lack of knowledge as to how much Respondent
pays him for his work.
26 Jones conceded having recommended the discharge of Eric Hen-
derson on one occasion. However, Mike Wallen came to the jobsite,
spoke to Henderson, and did not fire him.
27 Respondent’s policy on jobs is to permit employees to leave work
early “if all the work is done” for the day.
28 These problems include employee work performance and em-
ployee complaints about conditions on the job. However, according to
Jones, he does not discuss these matters with management—“I say if
there is a problem, and they deal with it.”
payment for 8 hours of work when, in fact, employees worked
fewer hours, Jimmy Isaacs recalled working on a job in Red-
ding for which, 1 day, Jones credited some employees for hav-
ing worked 8 hours when the job was just a 4-hour job—
“Everyone who drove equipment got the eight hours”; however,
other employees, including squeegeemen, received pay for their
exact hours worked—4 hours. Initially, Jones testified that it is
“pretty much . . . company policy” to pay its employees for 8
hours of work in a day when they complete their work in less
than 8 hours and that the practice covers every employee on his
crew and is not restricted to any type of job. However, when
asked if some employees may have received 8 hours of pay on
a job in Redding when others did not, Jones replied, “Yes,”
because “the people who got eight hours were the Class A driv-
ers, which when they left Sacramento and drove to Redding,
did the job, and then drove back, they were on the clock from
the time they left until the time they got back.” Other employ-
ees don’t get paid “for travel.” Thus, for employees who do not
possess class A licenses, “if the job is only going to take three
or four hours to do, they are not going to get their eight.” He
added that a driver, such as Isaacs, is “on the clock from the
time he left until the time he got back.” Wallen confirmed that
there is a company practice “that [employees] get paid if the job
is good for a full day . . . the employees get paid for a full day.”
However, asked if there are any particular employees who are
guaranteed 8 hours if they only work 4, Wallen said, “[A]ll of
them,” and added that, in this regard, there is no difference
between a squeegeeman and a class A driver. Wallen then
specifically denied that class A drivers are guaranteed 8 hours
even if they just work 4 hours.
Concerning the alleged violations of Section 8(a)(1) of the
Act committed by Anson Jones, alleged discriminatee Settecase
testified regarding two incidents. He recounted that, after the
yard meeting in early June during which Heath spoke to the
assembled employees, Anson Jones and the employees on his
crew worked for 2 weeks on a job in Merced and that the em-
ployees stayed together at a Motel 6 during the project.29 One
night in Merced, according to Settecase, Jones and the employ-
ees on his crew were all gathered “outside” one of the rooms
when Jones began reiterating what Heath had said to the em-
ployees. Jones spoke “about the company and us losing our
uniforms or cutting our pay to $8 an hour and closing the doors
if we went union. . . . I said that I was in a union for 15 years,
and I thought the benefits were good and the working condi-
tions were good. . . . [Jones] said that it wasn’t no good. And I
asked him . . . why not? And he said that they had a union here
before . . . and . . . it wouldn’t be any good because we’d all
lose . . . our medical benefits. We wouldn’t get . . . subsistence

29 Contrary to Settecase, R. Exh. 4, the work schedule for Respon-
dent’s crews through August, does not show the Anson Jones crew
working any job in Merced in June, July, or August. In fact, other than
3 days in Lafayette on July 22–24, the Jones crew worked almost ex-
clusively in the Sacramento area until August 12 at which time the
Jones crew was assigned to a job in Watsonville. The work schedule
does reveal that Jones’ crew worked on a 2-week job in Merced in mid-
April; however, this was prior to Respondent becoming aware of the
LIU organizing campaign and cannot be the weeks to which Settecase
referred to in his testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD240
and we’d get a pay cut.” While admitting having a June con-
versation with Settecase during which “I said I didn’t care for
the union,” Anson Jones specifically denied saying wages
would be cut, benefits would be lost, and Respondent would
close if the employees supported the LIU.
Settecase next testified regarding an incident in July while
Anson Jones’ crew was working on a job at Sacramento City
College in Sacramento.30 One afternoon, according to the al-
leged discriminatee, Jerry Morales and two other LIU represen-
tatives came out to the jobsite and began distributing leaflets on
behalf of Laborers Local 185. After they finished and left,
Anson Jones walked over to the crew’s stockpile area near
which his own truck was parked, approached the vehicle,
“ripped [a flyer] off his . . . windshield, and said that if that
asshole puts anymore shit on my windshield, I’m going to kick
his ass.” At this point in his testimony, asked if he remembered
anything else Jones may have said, Settecase responded, “No,
other than the statement, no.” Then, asked if Jones said what
would happen to their benefits, Settecase replied that, after his
threat, Jones “just kept going. . . . He said that we’d lose every-
thing. We’d lose uniforms, and our subsistence and our pay.
He’d like to say they close the doors a lot to them. If we kept
up, you know, kept up the Union activities.” Finally, asked if
Jones said anything about water, Settecase recalled him saying,
“[T]hat we didn’t work hard enough. We didn’t deserve water
or facilities.” Asked about this incident by Respondent’s coun-
sel, Jones only specifically denied warning that employees
would lose their benefits and that the Company would close if
the union came in.
Settecase also testified about a conversation with Mike
Wallen on a Sunday in early July at Respondent’s Sacramento
facility. He recalled that, as the employees, working on Anson
Jones’ crew, were preparing to return to Merced, alleged dis-
criminatee McQuerry approached and said that Wallen wanted
to speak to him. “I went over to see what Mike wanted,” and
he “showed me a folded out map of California, and . . . said that
if we went union, this would be the areas where you wouldn’t
get subsistence.” Settecase, who stated that Wallen termed the
map a “union subsistence map,” added that it showed a small
area around Crescent City and another small area near San
Diego in red. “But, the rest of it we wouldn’t get subsistence.”
Respondent’s Exhibit 5 is a map of California, published by the
Associated General Contractors of California, showing, in red,
areas in which subsistence is not paid to any construction in-
dustry craft employees and, in other shades, areas in which
daily subsistence payments are made to the various craft em-
ployees. Mike Wallen testified that he showed this map to
Respondent’s employees “in a group environment” and that he
showed to the employees on Anson Jones’ crew in May at Re-
spondent’s facility. According to him, he told the employees
“that these are some of the subsistence areas that the labor un-
ions pay subsistence or don’t pay subsistence and showed them
the areas that we do our work and just inform[ed] them of what
our subsistence rate is compared to what is on the map.”

30 R. Exh. 4 has Anson Jones’ crew working in Sacramento through-
out the month of July.
There is no dispute that Respondent twice acted with regard
to daily subsistence payments to its employees in July. First,
the following memorandum was sent to all the employees on its
work crews:
Due to increased costs in the Bay Area, and your re-
quest, we have decided to increase all subsistence pay-
ments to $57 per day.
If we were in the Laborers Union, 98% of the areas
you work in do not qualify for subsistence. If you would
like to have your copy of the Laborers’ subsistence map,
please request one, they are available in the office.
This change went into effect on July 14, 2002.
Michael Wallen, who denied that the daily subsistence payment
was changed in order to induce Respondent’s employees to
cease supporting the LIU, stated that Respondent decided to
increase the payment rate as its foremen were hearing “con-
cerned comments” form the employees on their crews, regard-
ing expensive lodging costs in the Bay Area; “so we actually
had [a secretary] do a survey of several locations where we do
jobs, find out what the rates for, [sic] and what would be com-
mensurate for our employees.” Respondent failed to offer this
survey as corroboration; nor did Anson Jones or any other
foreman corroborate Wallen that employees were complaining
about lodging costs in the Bay Area.
Next, alleged discriminatee, Jimmy Isaacs, who lives in
southern California and who is a class A licensed shuttle truck-
driver for Respondent,31 testified that his 2002 work season for
Respondent began in April and that he worked exclusively in
northern California, receiving $50 per day in subsistence pay-
ments “for every day that I was up in Northern California”
away from home. According to Isaacs, he received the daily
subsistence payments for weekends, during which he worked or
was scheduled to work, and not for weekends, during which he
would return home.32 Isaacs, who denied any conversations,
concerning the eventual cessation of daily subsistence pay-
ments for work within the Sacramento area, with management
officials prior to commencing work for Respondent in 2002,
further testified that, in early July, while he was at a stockpile
in the Sacramento area, he engaged in a telephone conversation
with Mike Wallen. “He told me that they . . . was not going to
be giving subsistence any more after this . . . . workweek was
over. And I told him . . . that sucks. . . . He said it was com-
pany policy. We don’t give subsistence while we’re working in
the Sacramento area. . . . Nobody had it, so I wouldn’t be get-
ting it. And then he told me also that I can thank Shawn for
that.”33 The record reveals that, between July 3 and 19, Isaacs

31 Shuttle truckdrivers drive between stockpiles and the jobsites,
emptying their loads of sealant and returning to pick up new loads.
32 His usual schedule permitted him to be off every other weekend.
He would return home on those occasions and received no subsistence.
33 As stated above, according to Isaacs, prior to Wallen’s announce-
ment, unlike those employees who lived within the Sacramento area, all
southern California employees received daily subsistence payments for
their working days within 75 miles of Sacramento and outside the 75-
mile area. He believed there were five such employees, who continued
to live in southern California. Isaacs intimated that his were the only
daily subsistence payments for southern California residents, which
VALLEY SLURRY SEAL CO. 241
worked jobs for Respondent in Sacramento and that, in fact, he
received no daily subsistence payments during those 16 days.
According to Isaacs, not receiving subsistence pay made life
“absolutely miserable” for him as he could not afford a motel
room and was forced to live in his truck. He was unable to
shower and, as a result, was too “dirty” to eat in public restau-
rants and wore dirty clothing. Isaacs testified that, at least, 2
weeks after their initial July conversation, he had a face-to-face
conversation with Wallen at a service station near an off-ramp
from Interstate 80 in the Sacramento area. They spoke as
Isaacs was filling his truck with gasoline, and, after greeting
each other, Wallen told Isaacs “that he would give me [four
days of subsistence per week], but, if I told anybody anything
. . . I would not get the subsistence . . . . And I told him that
they should have never took the subsistence away from me. I
didn’t ask to come to Northern California . . . and then Mike
Wallen told me that I can thank the Union for that. Because of
the Union, it had made Jeff Reed mad. . . . I finished fueling the
truck . . . and went . . . and did my job.” Finally, the complaint
in Cases 20–CA–30721 and 20–CA–30973 alleges that, in fact,
Respondent reinstated Isaacs’ subsistence, albeit unlawfully, at
a reduced rate.34 In this regard, utilizing Respondent’s Exhibits
4 and 6, entitled “Jimmy Isaacs Subsistence Pay 2002,” it is
apparent that, contrary to Mike Wallen’s assertion, while he
was paid subsistence for all days on which he worked on jobs
more than 75 miles from Sacramento, for jobs within 75 miles
of Sacramento, he was only sporadically paid daily subsistence.
Thus, on July 25, 26, 29–31 and August 1 and 2, he worked in
Sacramento but received subsistence pay only on July 26 and
Sunday, July 28; on August 5 through 8, he worked in Sacra-
mento but received no subsistence pay on August 5;35 and, on
August 20 through 23 and 25, while working on a job in Fair-
field, a city less than 75 miles from Sacramento, he received
subsistence on just 1 day—August 20.36
Respondent does not dispute that it ceased paying daily sub-
sistence to Isaacs for work in the Sacramento area in July. In
this regard, Michael Wallen testified that Respondent decided,
sometime in May,37 to treat its employees, who lived in south-
ern California and had, in the past, worked for it in the southern
part of the state but who were then working almost exclusively

were suspended. He named another employee, Mario Trejo, as con-
tinuing to receive subsistence. However, during cross-examination,
Isaacs conceded that Trejo may have been working in the San Fran-
cisco Bay Area in July and, thus, would have normally been receiving a
daily subsistence payment.
34 If the General Counsel means that Respondent paid daily subsis-
tence to Isaacs for work in Sacramento but at a rate less than before
July 2, there is no record evidence to support such an allegation.
35 Isaacs worked on a job in Watsonville, which began on August 12.
Presumably, he would have been required to remain in Sacramento in
order to prepare for that job. However, Respondent failed to pay him
subsistence on Friday, August 9, or for the weekend of August 10 and
11.
36 Isaacs testified that he received subsistence payments for most of
September but that “a lot of it was because we were away from [Sac-
ramento].” He also testified that, as Respondent paid for a motel room
for him during October, he received no daily subsistence payments.
37 During cross-examination, he stated that “conversations began in
April after we started our new season.”
for it in northern California, in the same manner as its employ-
ees, who lived in northern California, and not pay daily subsis-
tence to them for work within 75 miles of Sacramento.38 Re-
spondent’s decision meant that subsistence would only be paid
to all its employees for work more than 75 miles from Sacra-
mento. In this regard, according to Wallen, in May, Respon-
dent, established a “timeline” for treating the four southern
California-based employees, including Jimmy Isaacs, who re-
mained with Respondent after it ceased full-time operations in
the southern part of the state, as northern California-based em-
ployees,39 and he began personally40 informing the employees
of Respondent’s new subsistence policy.41 Wallen added that
“I wanted to give them a minimum of thirty days prior to the
cut-off date when were going to stop providing subsistence”
because “I wanted to give them enough time to make decisions
whether to stay with the company based on where we were
going or to move north. One employee . . . moved to Sacra-
mento; the other three are still in Southern California.” Con-
tinuing, Wallen testified that, as set forth above, he informed
alleged discriminatee Emminger of Respondent’s decision in
May, and, when asked if also spoke to alleged discriminatee
Isaacs, he replied, “Yes. . . . It would have been in May when
we made the decision.” Wallen stated that he gave Isaacs no-
tice of Respondent’s intent; that he specifically told Isaacs that
his daily subsistence for work within the Sacramento area
would end in July; and that Isaacs replied, “[H]e was probably
going to look for some work in Southern California . . . he had
no intention of moving up here.” Wallen further testified that,
during conversations between them during June, Isaacs in-
formed him that, without subsistence, he would be forced to
live out of his truck. Therefore, notwithstanding he was work-
ing a job in Sacramento in the first week of July, “because of
his Class A license and his continued disapproval of cutting off
his subsistence . . . and I didn’t want him starving or living in
his truck, we made arrangements to filter in subsistence to help
him out.”42 In this regard, “I think [I] informed him that he
would be receiving the July 1 and July 3 and then he was going
to be cut off.” During the next 2 weeks, Isaacs worked a Sac-
ramento job and was not paid any subsistence. According to
Wallen, during those 2 weeks, Isaacs “was very boisterous
about not being able to receive a subsistence” and complained
“that we were affecting his life, starving his family, starving
him, forcing him to live in a vehicle, not being able to shower,
bathe, eat,” and, while he was aware that Isaacs was, in fact,
living in his car, not showering, and generally living in a
squalid and feculent manner, Wallen averred that “the shock

38 According to Wallen, Respondent considered daily subsistence
payments for work in the Sacramento area to be “inappropriate.”
39 As stated above, in order to retain these employees, in 2001, Re-
spondent had made daily subsistence payments to them even for work
within the Sacramento area.
40 Wallen admitted not retaining any records of these conversations.
Asked why no companywide memorandum was published, Wallen
averred that he prefers dealing with employees “individually.”
41 These conversations were all within “the same week.”
42 According to Wallen, daily subsistence to employee, Mario Trejo,
for work in Sacramento was stopped on July 1 and not resumed as he
made arrangements to stay with other crewmembers in Sacramento.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD242
was that he didn’t make other arrangements.”43 Continuing,
Wallen testified that, as Isaacs was scheduled to start a job
outside the Sacramento area, for which he would receive daily
subsistence pay, on July 22, Isaacs was paid subsistence for the
weekend of July 20 and 21. Eventually, according to Wallen,
“[B]ecause Jimmy was a valued employee” and “I didn’t want
any of my workers living in a car,” Respondent resumed paying
daily subsistence to Isaacs while he worked in Sacramento.
Finally, Wallen specifically denied telling Isaacs he could
blame the cessation of his daily subsistence payments in Sac-
ramento on Emminger, reinstating Isaacs’ subsistence during
the first week of August at a reduced rate, or threatening to
eliminate the resumed subsistence payments if Isaacs told other
employees and generally denied telling employees that their
subsistence pay had been eliminated because of Laborers Local
185.
In August, Isaacs and the employees on Anson Jones’ crew
were assigned to work on a job in Watsonville, a location in
excess of 100 miles from Sacramento. Frank Settecase,44 who
executed an authorization card for Laborers Local 185, given to
him by alleged discriminatee Emminger “just after” the day of
the Christmas party, testified that, during the second week of
the job, an LIU official visited the jobsite one day, and he dis-
tributed flyers and invited the employees to a meeting at a local
pizza restaurant that night. Later in the day, Mike Wallen vis-
ited the job, and “I think . . . he invited us to dinner, but we told
him we were going to have pizza with some [LIU] officials.”45
According to Settecase, “[M]ost of us . . . I can’t say all of us,”
attended the meeting with the LIU agents, and he identified
alleged discriminates, Patrick McQuerry and Eric Henderson,
and two others as being at the pizza restaurant with him. Sette-
case further testified that, the next day, a photograph was taken
of Henderson, Antonio _________, and him while at work on
the jobsite in Watsonville. The photograph (GC Exh. 3) which
appeared in a newspaper, the Watsonville Register-Pajaronian,
on Saturday, August 17, showed Settecase wearing a Laborers
Local 185 logo shirt over his work shirt. The alleged discrimi-
natee added that he “had worn [the shirt] before” while working
and that other employees, including McQuerry, also had worn
Laborers Local 185 logo shirts at work. There is no record
evidence that any management representative or Anson Jones
ever saw the August 17 photograph.
Settecase next testified that, the following week, the employ-
ees on Jones’ crew were working on a job in Napa and that, on

43 Respondent offered no evidence with regard to its other employ-
ees, who continued to live in southern California. Thus, there is no
evidence that Respondent treated the individuals in the same manner in
which it treated Isaacs—stopping subsistence payments for work in the
Sacramento area. In this regard, I note that Wallen conceded not issu-
ing an employee memorandum, regarding the change in practice.
44 Along with other employees, Settecase attended the late Christmas
party at the Rusty Duck restaurant in Sacramento. According to him,
prior to the start of the party, he spoke to Mike Wallen “outside” the
restaurant, and Wallen told him there were “[u]nion officials” down-
stairs. Wallen did not identify the union to which he referred, and
Settecase replied, “[T]hat I belonged to the [IAM] for 15 years, I’d like
to talk to them.”
45 Wallen failed to deny this aspect of Settecase’s testimony.
Thursday, he had a conversation with Mike Wallen. The latter
informed the alleged discriminatee “that I was laid off effective
immediately . . . on a rotating basis. Every two weeks . . . . I
would be laid off and then brought back and then laid off and
brought back.”46 Settecase added that Wallen also laid off Eric
Henderson and Patrick McQuerry that day. According to Set-
tecase, notwithstanding what Wallen told him, Respondent did
not recall him to work until the end of September,47 and he was
again assigned to Anson Jones’ crew. Henderson and
McQuerry were recalled and returned to work on or about Sep-
tember 24; however, rather than being assigned to squeegee
work, each was assigned to fill the “sand hopper,” work which
the employees considered unpleasant.48 In this regard, Jones
told Settecase “that I wouldn’t be performing squeegee work
any more.”49
Jimmy Isaacs testified concerning two alleged comments by
Anson Jones, suggesting Respondent was unlawfully motivated
in laying off Settecase, Henderson, and McQuerry, while his
crew was working on a job50 in Concord, located approximately
60 miles from Sacramento, at the end of August. In this regard,
I initially note that, according to Respondent’s work schedule
for the month of August, none of its crews worked jobs in Con-
cord in August and that, while a crew did work in Walnut
Creek, a neighboring city, it was not Anson Jones’ crew. In
any event, according to Isaacs, one day on the job, while sev-
eral employees, including him, were either setting up the stock-
pile or putting everything away at the end of the workday,
Jones and employee Sam Frye were talking about the three
alleged discriminates, and “Anson Jones told Sam Frye that
[Respondent] . . . got rid of the problem” with their layoffs.
Also, Isaacs testified, while on the same project, one night after
work, the employees on the crew were “hanging out” at their
motel with an individual named Scott _______, who was em-
ployed by the street sweeping company utilized by Respondent
on its projects. Scott mentioned “something” about the laid-off
employees, and Jones said, “[T]hat [R]espondent got rid of
their troublemakers.” On another occasion at the end of Sep-
tember, Isaacs further testified, he was working with Anson
Jones crew on a job in Woodland, and members of the crew,
including Anson Jones, were having a conversation with Skip
Peppes, an operating foreman for Respondent on its chip seal-
ing crew, and an employee known as “Chicken.” During the
conversation, someone mentioned that Respondent had recalled
Settecase, Henderson, and McQuerry back to work. “Chicken”

46 Settecase alleged that at the time of his layoff “all but one squee-
geeman had less seniority than him.” In this regard, a review of GC
Exh. 6 discloses that, in fact, at least four of Respondent’s squeegee-
men had more seniority than Settecase but that, at least eight squee-
geemen with less seniority than him, were not laid off.
47 The record establishes that he returned to work on September 30.
48 Jimmy Isaacs described this as “physically hard labor” as employ-
ees are required to unload 100 pound bags, filled with sand, from a
company truck.
49 The propriety of Respondent’s recalls of Settecase, Henderson,
and McQuerry is not an issue raised by the instant consolidated com-
plaints.
50 “We were doing patchwork where they had put cable . . . down the
. . . side of the streets.”
VALLEY SLURRY SEAL CO. 243
opined that he could not believe it and asked why they had been
recalled. Peppes replied that “the Union got four lawsuits on
[Respondent], and [it] is going to prove the Union wrong by
bringing those guys back.” According to Isaacs, Jones did not
controvert Peppes. Anson Jones specifically denied making the
comments, attributed to him by Isaacs.
Respondent’s defense to the allegations that it terminated al-
leged discriminates Settecase, Henderson, and McQuerry in
violation of Section 8(a)(1) and (3) of the Act is economic in
nature. Thus, Jeffrey Reed, Respondent’s president, did not
dispute that Respondent effectuated a layoff of its employees in
August 2002. In this regard, Reed testified that “we generally
overstaff our slurry seal crews in order to get and keep qualified
people for the season. If we don’t get them by June, they will
go somewhere else to go to work for the season.” In 2002,
based upon prior work experience, “in June and July, we were
overstaffing our crews . . . in the anticipation that we would go
to a fourth crew.” He further testified, however, that in 2001 25
percent of Respondent’s work was for the California Depart-
ment of Transportation (CalTrans),51 that during the early
summer of 2002, the California legislature “was hung up” in its
budget process, and that “no money was being set aside for
transportation projects to bid. . . . This went into . . . late Sep-
tember when the State budget was passed.” In these circum-
stances, “CalTrans virtually eliminated any slurry seal bidding
[in 2002].” Thus, with no funds, “there were no projects with
CalTrans that we were able to bid on . . . or do the work during
the season,” and, as a result, “both July and August had sub-
stantial drops” in revenue as compared to the same time period
in 2001. Also, according to Reed, during 2002, Respondent
failed in bids for substantial city and county jobs in Santa Bar-
bara and Salinas. Based on the foregoing, Reed testified, “by
the time we got to mid-August,” because no State budget had
been passed, which would have funded CalTrans, “and we
missed these large projects that we were anticipating getting, it
was sort of death mill [sic] to try to see how we could fire up a
fourth crew and keep the crews in the over-staffed position that
they were [in].” Accordingly, management, including Wallen
and him, decided “that we had to cut back.” Elaborating on the
asserted economic necessity for layoffs,52 Reed asserted that
Respondent, which had gross revenues of “just under twenty
million dollars” during its fiscal year March 2001 through Feb-
ruary 2002, had gross revenues of “11.2 million dollars which

51 Reed testified that “Anson Jones’ crew is our CalTrans crew; it is
the crew that does CalTrans work for us.”
52 As to the magnitude of the layoffs, Reed testified that “through the
period of July, August, and September, there were a number of people
that were laid off . . . each of the crews . . . and during the last week of
August, I believe there were six, seven, or eight people that were laid
off.” Asked for the classifications of laid-off employees, Reed stated
that the layoffs were in the “overstaffed classifications,” including
squeegeemen and traffic control employees. He added that class A
licensed drivers were “protected” as they have a “golden ticket” for
remaining employed. The only record evidence of termination dates is
GC Exh. 6, and, according to it, besides the three alleged discrimina-
tees, two of whom were squeegeemen, five employees were laid off in
June, two were laid off in July, two other employees were terminated in
September, and one employee was laid off in October.
is approximately a seventy-six percent drop in volume,” during
its March 2002 through February 2003 fiscal year and that its
volume of business in August was “1.6 million”—a significant
decrease from “3.7 million” in the prior year. However, Re-
spondent failed to offer any financial or other documentary
evidence as support for or corroboration of the testimony of
Reed. In this regard, I note that, while Respondent did offer the
work schedules for its crews through the end of August,53 it
failed to offer any evidence regarding the work for its crews in
September or October.
Mike Wallen testified that he was involved in the decisions
to lay off Settecase, Henderson, and McQuerry and that each
was laid off for the “same reason. . . . Lack of work was the
primary reason.” According to Wallen, who denied that the
layoffs were unlawfully motivated, he spoke to each, informing
him of his layoff, and he had the “same” conversation with
each employee. Thus, he told Henderson “that we had lost a
couple of big bids that we were hoping to get, and with the
overstaffing that we carried through most of the season, we
were at a point where we had to make some changes. They
could expect a two-week layoff, and we would review it again
at the end of that period and to stay in contact with me weekly.”
Wallen added that he utilized Respondent’s normal criteria for
layoffs, class A licenses, skills, and experience,54 and tenure,
for the three alleged discriminatees and that none had class A
licenses. Notwithstanding that, according to General Counsel’s
Exhibit 6, squeegeemen with less seniority than Settecase and
Henderson were retained and employees with less seniority
than McQuerry were retained,55 asked to explain why he laid
off more senior rather than less senior employees, Wallen re-
plied, “I don’t believe I did.” Asked if he even investigated
seniority, Wallen responded, “Sure . . . I looked at their experi-
ence, how many years that they had been in the trade.” Spe-
cifically asked what he did to check, Wallen said, “I have been
around my crew, I know how long they have been around, and I
know their work ethics. To check specific dates of one day of
extra work is more prevailing in decision-making, no.” Even-
tually, Wallen testified, in the first or second week of Septem-
ber, he offered recall to a seal coat team to Henderson, but the
latter said, “[H]e didn’t like working with the seal coat crew.”
Also, at some point in early September, “I spoke to [Settecase],
offered him to come back and do some work. His response was
that . . . he was watching his girlfriend’s kids, and they had
some doctor’s appointments and wouldn’t be able to make it

53 R. Exh. 4, the paving crews’ work schedules, ends in August, and
discloses that Anson Jones’ slurry seal crew worked steadily that
month.
54 In a position statement to Region 20, dated October 2, 2002, Re-
spondent’s attorney asserted that Settecase, Henderson, and McQuerry
had the least seniority among Respondent’s squeegeemen. However, a
review of GC Exh. 6 discloses that, of the 13 squeegeemen remaining
on Respondent’s payroll, 8 had lower seniority than Settecase and 3 had
lower seniority than Henderson.
55 It is not entirely clear what McQuerry’s job classification was;
however, he is listed as “seal coat.” At least, four squeegeemen, two
traffic contol employees, and two seal coat employees had less senior-
ity than him and were retained in August.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
. . . and would get back to me.”56 Asked if he sent letters to
either Henderson or Settecase, Wallen said he never sends let-
ters as “usually if I need people its on a spur of the moment
basis; if I find out that a crew is short, then I try to find re-
placements.”
B. Legal Analysis
As set forth above, the consolidated complaints allege that
Respondent engaged in various acts and conduct, violative of
Section 8(a)(1) and (3) of the Act. With regard to the alleged
8(a)(1) violations, I initially turn to the acts and conduct, attrib-
uted to Mike Wallen, Respondent’s project superintendent, and
note that two allegedly unlawful conversations occurred be-
tween Wallen and John Michael Shawn Emminger. With re-
gard to these, while Emminger’s demeanor, while testifying,
was not that of an inherently dishonest witness, manifested by
his testimony regarding Respondent’s Exhibit 1 and regarding
his use of the company vehicle for trips home, he exhibited
scant reluctance to fabricate testimony in his own self-interest.
However, in contrast, Wallen’s demeanor, while testifying, was
that of an utterly disingenuous witness, and, between Em-
minger and him, I believe the former was the more forthright
witness.57 Therefore, crediting Emminger, I find that, in early
May, during a conversation at a Sacramento park, Wallen in-
formed the alleged discriminatee that his wage rate had been
reduced from $17 to $15 per hour, that his subsistence pay
would be reduced as he would no longer be given subsistence
pay for weekends in which he was not scheduled to work, and
that Respondent would provide a vehicle for him for transporta-
tion to and from work on nonwork weekends. However, noting
that his stepfather, Jimmy Isaacs, corroborated only this portion
of Emminger’s testimony, I do not believe the alleged discrimi-
natee’s assertion that Wallen also threatened to lay him off if
Emminger informed other employees regarding what the for-
mer told him. Accordingly, I shall recommend that paragraph
6(a) of the complaint in Cases 20–CA–30721–1 and 20–CA–
30973 be dismissed. Again crediting Emminger, I find that, on
the day of his eventual layoff, while driving to a jobsite, the
alleged discriminatee spoke to Wallen by telephone and that,
after informing Emminger only foremen were allowed to use
company vehicles for nonwork purposes, Wallen asked Em-
minger, “[I]f I had contacted the Union or had they contacted
me.”58 The General Counsel alleges that the foregoing consti-
tuted an act of unlawful, coercive interrogation. As to whether
Wallen’s questioning of Emminger was unlawful, the test is
“whether under all the circumstances the interrogation reasona-
bly tend[ed] to restrain, coerce, or interfere with rights guaran-
teed by the Act.” Sunnyvale Medical Clinic, 277 NLRB 1217
(1985); Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760

56 Counsel for Respondent, in his above-noted position statement,
wrote that Wallen did not offer recall to Settecase until September 25
and that, on September 26, the latter refused the offer, citing eye ap-
pointments for his girlfriend’s children as the reason.
57 I shall give credence to Wallen’s testimony only when corrobo-
rated by other evidence.
58 In its factual context, Wallen’s version of this conversation defied
belief.
F.2d 1006 (9th Cir. 1985). While, at the time of the above con-
versation, Respondent was aware of the LIU’s organizing cam-
paign amongst its employees, there is no record evidence that
Wallen was aware of Emminger’s role in it, that the latter had,
in any manner, publicized his role as a union adherent, or that
the two had ever discussed the LIU. Further, there is no evi-
dence that Wallen and Emminger had anything but a supervi-
sor-employee relationship, and Wallen asked his question
shortly after unlawfully warning Emminger regarding the ad-
verse consequences which would result from his disclosure of
his personal use of a company vehicle during nonwork week-
ends. In these circumstances, as there does not appear to have
been any lawful reason for Respondent’s project superinten-
dent’s question, I find Wallen’s interrogation of Emminger to
have been coercive and violative of Section 8(a)(1) of the Act.
Grouse Mountain Lodge, 333 NLRB 1322, 1328 (2001).
Next, it is alleged that Wallen’s conversation with Frank Set-
tecase with regard to Respondent’s Exhibit 5, a document pub-
lished by the Associated General Contractors of California,
depicting areas in which subsistence is paid to employees, who
are working in the various construction crafts, including labor-
ers, and others in which subsistence is not paid to the employ-
ees, was violative of Section 8(a)(1) of the Act. While noting a
significant contradiction in Settecase’s testimony regarding
Michael Heath’s speech to Respondent’s employees in early
June and the meretricious and contrived nature of his testimony
regarding incidents in Merced in June and at Sacramento City
College in July, in contrast to the mendacious Wallen, Settecase
appeared to be the more palatable witness. Therefore, I find
that, in early July at Respondent’s Sacramento facility, Wallen
spoke to Settecase, showed him the above-described map of
California, and “said that if we went union, this would be the
areas where you wouldn’t get subsistence” pay. The Supreme
Court has held that, when an employer makes a prediction as to
the effect he believes unionization will have upon his company
and its employees, such as that of Wallen, the prediction “must
be carefully phrased on the basis of objective facts to convey an
employer’s belief as to demonstrably probable consequences
beyond his control.” NLRB v Gissel Packing Co., 395 U.S.
575, 618 (1969). However, while the Associated General Con-
tractors of California’s map is undoubtedly accurate in depict-
ing the areas, in which subsistence is not paid to laborers, the
document was not sufficient to constitute objective evidence to
support Wallen’s prediction that employees would suffer ad-
verse consequences if they selected the Laborers Local 185 as
their bargaining representative. Thus, even assuming the
agreement, between Associated General Contractors of Califor-
nia and the LIU established the subsistence zones, which are
depicted in the map, there exists no record evidence to suggest
that the LIU requires all employers to accept the identical col-
lective-bargaining agreement or that, following negotiations,
Respondent’s employees would not be covered by a distinct
collective-bargaining agreement, one which retained Respon-
dent’s existing subsistence pay practice. Schaumburg Hyundai,
318 NLRB 449, 450 (1995); Debber Electric, 313 NLRB 1094,
1097 (1994). Put another way, Gissel Packing, supra, does not
sanction predictions based on such an unproven or dubious
premise as Respondent’s herein. In these circumstances, rather
VALLEY SLURRY SEAL CO. 245
than a permissible prediction, I believe Wallen’s comment con-
stituted a threat of more onerous working conditions if employ-
ees selected Laborers Local 185 as their bargaining representa-
tive, and, therefore, was violative of Section 8(a)(1) of the Act.
Finally, turning to Jimmy Isaacs’ testimony with regard to a
conversation between himself and Wallen at a gas station near
an off ramp from Interstate 80 in Sacramento, Isaacs’ demeanor
was not particularly impressive, and I believe he may well have
fabricated portions of his testimony. However, as between the
guileful Wallen and the alleged discriminatee, I found Isaacs to
have been the more credible witness.59 Accordingly, I credit
Isaacs that Wallen said, “[T]hat he would give me [4 days of
subsistence per week] but, if I told anybody anything . . . . I
would not get the subsistence . . . And I told him that they
should have never took the subsistence away from me. I didn’t
ask to come to Northern California . . . and then Mike Wallen
told me that I can thank the Union for that. Because of the
Union, it had made Jeff Reed mad.” As to Wallen’s warning
that, if Isaacs mentioned Wallen’s offer to other employees, he
would lose his subsistence pay for work within Sacramento, the
Board has held that Section 7 of the Act, which grants to em-
ployees the “unfettered” right to engage in concerted activities
for their mutual aid and protection, encompasses discussions,
amongst employees about their salaries and other compensation
for work—an inherently concerted activity. Automatic Screw
Products Co., 306 NLRB 1072, 1072 (1992); Triana Industries,
245 NLRB 1258, 1258 (1979). It follows that restrictions upon
employees from communicating with each other concerning
their wages, compensation, or other terms and conditions of
employment are “plain and obvious” violations of Section
8(a)(1) of the Act. Hilton’s Environmental, Inc., 320 NLRB
437, 454 (1995). In my view, Section 7 of the Act clearly pro-
tected Isaacs’ right to discuss his compensation, including sub-
sistence pay arrangements, with his fellow employees, and
Wallen’s prohibition of such discussions “inhibit[ed]” employ-
ees in the exercise of said Section 7 right in violation of Section
8(a)(1) of the Act. Moreover, while counsel for Respondent
points out that there is no record evidence that Wallen’s warn-
ing was related to Isaacs’ union activities, the Board has held
that such linkage is “irrelevant”; for the Section 7 right to en-
gage in concerted activities exists independent of union activi-
ties and, in any event, such discussions may well be a “precur-
sor” to seeking representation by a labor organization. Auto-
matic Screw Products Co., supra; Triana Industries, supra.
Thus, I find that Wallen’s warning to Isaacs was violative of
Section 8(a)(1) of the Act. Id. As to Wallen’s comment that
Jeff Reed authorized the elimination of subsistence payments to
him for work in the Sacramento area because of Respondent’s
employees’ support for the LIU, the Board has long held that,
informing employees that an adverse employment action re-
sulted from their support for a labor organization, is inherently
coercive and unlawful. Jefferson Smurfit Corp., 325 NLRB

59 Contrary to counsel for Respondent, I do not believe Isaacs was
impeached with regard to his lack of recollection as to the wording on
R. Exhs. 2(a) and (b). If anything, counsel refreshed his recollection.
However, assuming Isaacs had been impeached, he appeared to be
decidedly more candid than the deceitful Wallen.
280, 300 (1998); Hillhaven Rehabilitation Center, 325 NLRB
202, 213 (1997). Accordingly, I find that this comment, by
Wallen, likewise violated Section 8(a)(1) of the Act. Id.
The consolidated complaints allege that, in early June, Mi-
chael Heath made statements, violative of Section 8(a)(1) of the
Act. As stated above, there is no dispute that, on a Sunday in
early June, after being introduced by Jeffrey Reed, Heath did
address a group of Respondent’s employees, including those in
Anson Jones’ slurry seal crew, at Respondent’s facility in Sac-
ramento. Other than offering two specific denials, Heath failed
to testify as to what he did say to the listening employees. In
these circumstances, the only complete accounts, in the record,
of his speech are found in the respective testimony of Frank
Settecase and Jimmy Isaacs, and, while neither was a particu-
larly veracious witness, Heath failed to deny several of the
alleged statements, attributed to him. Accordingly, with one
exception, I shall rely on Settecase’s and Isaacs’ mostly cor-
roborative versions of what Heath said. Therefore, I find that,
during his speech, Heath began by denigrating Laborers Local
185 and warned that, if the employees selected the labor or-
ganization as their bargaining representative, their wage rates
could be reduced,60 they would no longer receive uniforms and
medical insurance, and they would no longer receive subsis-
tence pay for work outside of Sacramento. However, crediting
Heath’s specific denial, I do not believe he ever warned that the
company would close its doors before it would go union. In
this regard, after testifying, during direct examination, that
Heath warned that Respondent would close its doors, during
cross-examination, Settecase changed his testimony, saying
Heath said Respondent “might” close its doors, and, after
equivocatedly attributing such a warning to Heath, when con-
fronted by his contrary pretrial affidavit, Isaacs changed his
testimony, stating he did not recall Heath stating such a warn-
ing.61 The Board has, of course, long held that an employer
violates Section 8(a)(1) of the Act by threatening employees
with adverse consequences, including reduced wages, if they
select a union as their bargaining representative. Flamingo
Hilton-Laughlin, 324 NLRB 72, 111 (1997); HarperCollins
Publishers, Inc., 317 NLRB 168, 179 (1995), affd. in part 79
F.3d 1324 (2d Cir. 1996). Further, contrary to Respondent,
there is no record evidence that Heath based his statements
upon objective facts so as to constitute lawful predictions,
rather than the blatant threats, pursuant to NLRB v. Gissel
Packing Co., supra at 618–619. Accordingly, I find that
Heath’s warnings were violative of Section 8(a)(1) of the Act.
The consolidated complaints assert that Anson Jones was
Respondent’s supervisor within the meaning of Section 2(11)
of the Act and its agent within the meaning of Section 2(13) of
the Act and attribute several statements, allegedly violative of

60 I specifically credit Isaacs in this regard. Heath specifically de-
nied warning the Company could reduce the employees wages to $8 per
hour if they selected Laborers Local 185 as their bargaining representa-
tive; Settecase was contradictory as to whether Heath said Respondent
“could” or “may” reduce the employees wages, and Isaacs was unable
to remember Heath specifying a wage rate reduction to $8 per hour.
61 Therefore, I shall recommend dismissal of par. 8(b) of the con-
solidated complaint in Cases 20–CA–30721–3, 20–CA–30721–4, and
20–CA–30721–5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD246
Section 8(a)(1) of the Act, to him. With regard to his alleged
status as a statutory supervisor, I note, at the outset, that the
burden of establishing an individual is a supervisor within the
meaning of Section 2(11) of the Act rests on the party—in this
instance, the General Counsel—who asserts supervisory status
(NLRB v. Kentucky River Community Care, 532 U. S. 706, 713
(2001); Hausner Hard-Chrome of Kentucky, Inc., 326 NLRB
426 (1998)), and that “any lack of evidence in the record is
construed against the party asserting supervisory status.” Elm-
hurst Extended Care Facilities, 329 NLRB 535, 536 fn. 8
(1999). Section 2(11) defines a supervisor as
any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust grievances, or to effec-
tively recommend such actions, if in connection with the fore-
going the exercise of such authority is not of a routine or
clerical nature but requires the exercise of independent judg-
ment.
The statutory indicia quoted above are to be read in the disjunc-
tive; as stated by the Board in Great American Products, 312
NLRB 962, 962 (1993), “an individual may be deemed a su-
pervisor within the meaning of [the above provision] if it is
shown that he or she possesses the authority to engage in any
one or more of the functions enumerated there and uses inde-
pendent judgment in exercising such authority.” With regard to
the latter point, “the Board finds judgment the use of which
requires that it be exercised beyond that involved in regular or
customary activities and which is not controlled or significantly
constrained by outside sources to be independent judgment
under Section 2(11).” Training School at Vineland, 332 NLRB
1412, 1413 (2000). Further, an individual, who is alleged to be
a supervisor, must exercise his or her authority in the interests
of the employer, and “performance of those functions in a
merely routine, clerical, perfunctory, or sporadic manner will
not suffice.” Nursing Center at Vineland, 318 NLRB 901, 904
(1995); Great American Products, supra. By the foregoing,
Congress meant to ensure that only individuals, who are vested
with “‘genuine management prerogatives’” are included within
the definition, and “the Board must judge that the record proves
that an alleged supervisor’s role was other than routine com-
munication of instructions between management and employ-
ees without the exercise of any significant discretion.” Great
American Products, supra; Quadrex Environmental Co., 308
NLRB 101, 102 (1992). Moreover, while an employer ostensi-
bly may grant supervisory authority to individuals, statutory
supervisory status requires the existence of “actual authority,”
and “mere paper authority does not confer supervisory status.”
F. A. Bartlett Tree Expert Co., 325 NLRB 243 fn. 1 (1997).
Also, absent evidence that individuals possess any of the enu-
merated indicia of supervisory status in Section 2(11), “there is
no reason to consider so-called secondary indicia, such as their
titles, the employee-supervisor ratio . . . or pay differentials
between them and others in their departments.” Training
School at Vineland, supra at fn. 3; Housner Hard-Chrome of
Kentucky, Inc., 326 NLRB 426, 427 (1998). Finally, the Board
has a duty not to construe the statutory language too broadly
because the individual found to be a supervisor is denied the
employee rights that are protected under the Act. Azusa Ranch
Market, 321 NLRB 811, 812 (1996); Hydro Conduit Corp., 254
NLRB 433, 437 (1981).
There is no dispute, and counsel for the General Counsel
does not contend, that, in his capacity as an operator/foremen
for Respondent, Anson Jones possesses any authority, in the
interest of Respondent, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or to discipline other em-
ployees or to effectively recommend such personnel actions.
There is also no dispute that, on a daily basis, when on a Sac-
ramento area or remote jobsite, Jones’ job duties consist of
“show[ing] up on a jobsite and get[ting] our equipment ready to
lay slurry and mak[ing] sure everybody has all of their stuff and
get[ting] them out on the job and do[ing] the job” and that
Jones spends his entire work day operating a slurry seal ma-
chine until all necessary slurry has been produced and laid on
the ground and working with the job tools when necessary.
Also, it is undisputed that Jones is in telephone contact with
Mike Wallen several times a day and that the latter is directly
involved in all personnel actions, enumerated in Section 2(11)
of the Act. While the record discloses that Jones is salaried,
earns substantially more than any other employee on his crew,
and initials the employees’ timecards—all secondary indicia of
supervisory authority, counsel for the General Counsel concen-
trates upon what she perceives as Jones’ authority to responsi-
bly direct the work of the employees on his crew as establishing
his status as a statutory supervisor. In support, noting that Re-
spondent’s jobsites stretch from the northern-most areas of
California to areas in southern California and it is not possible
for Mike Wallen to personally be at every jobsite every day,
that foremen are responsible for ensuring jobs are completed in
a timely manner and performed properly, that foremen must
deal with clients, and that Wallen relies upon the foremen to
report to him as to the job performance of the employees on his
crew, counsel argues that a conclusion Jones is not a supervisor
within the meaning of the Act “would require a finding that
Respondent permits large paving contracts far from headquar-
ters to occur autonomously and without accountability to cli-
ents or direct supervision of the crews performing the work.”
However, contrary to counsel, I need not make such a finding;
for, while he nominally assigns crew members to the various
jobs, the test for supervisorial status is only whether Jones uses
independent judgment in doing so. On this point, when asked if
employees knew their jobs at any given jobsite, Frank Settecase
admitted, “Yes, I would know that I was going to be squeegee”
and Jimmy Isaacs admitted, “We had our assigned works. I
was a driver. So I pretty much knew what I had to do.” Fur-
ther, besides the repetitive nature of the jobs, given the scene,
depicted in the August 17 newspaper photograph, of the Anson
Jones crew employees at work in Watsonville, it appears that
job assignments are of a routine nature and do not require con-
sideration of the employees’ expertise and skill in performing
technically demanding tasks. Moreover, adopting counsel’s
arguments would alter the meaning of “independent judgment”
to include distance and management oversight limitations; to do
so is the prerogative of the Board and not of an administrative
law judge. For the foregoing reasons and, inasmuch as there is
VALLEY SLURRY SEAL CO. 247
no evidence he exercises any authority beyond routine direc-
tions of simple tasks, I do not believe that Anson Jones should
be categorized as a supervisor, within the meaning of Section
2(11) of the Act,62 for Respondent. Willamette Industries, 336
NLRB 743, 744 (2001).
While counsel for the General Counsel neglected to address
the issue in her posthearing brief, the consolidated complaints
allege that, besides being a statutory supervisor, Jones also was
an agent for Respondent within the meaning of Section 2(13) of
the Act. In these circumstances, I am compelled to address the
issue. In several decisions, while concluding that individuals
were not supervisors within the meaning of Section 2(11) of the
Act, the Board has applied common law agency principles in
order to determine whether such individuals were agents of
their employers, within the meaning of Section 2(13) of the
Act, in the course of making particular statements or taking
particular actions. Cooper Industries, 328 NLRB 145 (1999);
Hausner Hard-Chrome of Kentucky, Inc., supra at 428; South-
ern Bag Corp., 315 NLRB 725 (1994); Great American Prod-
ucts, 312 NLRB 962, 963 (1993). One such principle is appar-
ent authority, which “results from a manifestation by the prin-
cipal to a third party that creates a reasonable basis for the latter
to believe that the principal has authorized the alleged agent to
perform the acts in question.” Id. The Board has long held
that, under this doctrine, the test for determining whether an
asserted supervisory employee is an agent of the employer is
whether, under all the circumstances, “the employees would
reasonably believe that the employee in question was reflecting
company policy and speaking and acting for management.”
Waterbed World, 286 NLRB 425, 426 (1987) (citations omit-
ted). In this regard, as stated in Section 2(13), when making the
agency determination, “the question of whether the specific acts
performed were actually authorized or subsequently ratified
should not be controlling.” Great American Products, supra.
Further, under Board precedent, an employer may have an em-
ployee’s statements attributed to it if the employee is “held out
as a conduit for transmitting information [from management] to
other employees.” Hausner Hard-Chrome of Kentucky, Inc.,
supra; Debber Electric, 313 NLRB 1094, 1095 fn. 6 (1994);
Great American Products, supra. In the latter regard, although
not dispositive, the Board will consider whether the statements
or actions of the asserted agent were consistent with statements
or actions of the employer. Pan-Osten Co., 336 NLRB 305,
306 (2001).
It was counsel for the General Counsel’s burden63 to estab-
lish that Respondent acted in such a manner that its employees
could reasonably have believed Anson Jones spoke on behalf of
management if he made the specific statements, which are al-
leged as unlawful and attributed to him, and I believe that there
is sufficient record evidence, demonstrating the existence of

62 I have considered the issue as to whether Jones was authorized to
credit Jimmy Isaacs for working 8 hours on a job in Redding, Califor-
nia when the job was just a 4-hour job and note that Jones was uncon-
troverted that he credited Isaacs for 8 hours because class A drivers,
such as Isaacs, are on the clock from the time they leave Sacramento
until they return and not merely for the time actually on a particular
jobsite.
63 Pen-Osten Co., supra.
such an agency relationship. In this regard, I note that Anson
Jones’ slurry seal crew often works on jobs located in excess of
a hundred miles from Respondent’s Sacramento facility; that,
as Wallen is unable to be on every jobsite every day, Jones is
clearly Respondent’s representative on the jobsites, charged
with the responsibility for completing the assigned jobs in ac-
cord with the production schedule and meeting with clients and
inspectors in order to resolve any work problems or disputes;
that, unlike other employees, Respondent has authorized Jones
to use a company credit card for purchasing necessary goods
and equipment; and that Jones initials employees’ timecards
and is the individual whom employees telephone when they
will be late reporting to work. Further, while the employees’
job functions may be routine and repetitive, Jones assigns the
jobs, moves employees from one job to another, and, presuma-
bly, informs employees of the amount and type of work to be
done each day, and, while there is no specific record evidence
that Jones regularly meets with the employees on his crew to
convey information and decisions pertaining to their jobs and
working conditions, as in D&F Industries, 339 NLRB 618,
619–620 (2003), Jones regularly reports to Mike Wallen, re-
garding whether the employees on his crew are capable of per-
forming their required job tasks and regarding employees’
complaints about their working conditions, and administers
Respondent’s policies regarding permitting employees to leave
work early and crediting employees for 8 hours of work when a
job requires fewer hours to complete. In these circumstances, I
believe there is sufficient record evidence to warrant the infer-
ence that, if Jones made the alleged comments, which are at-
tributed to him, the employees on his crew could reasonably
believe he was speaking on behalf of management and reflect-
ing its policy with regard to their representation by the LIU.
D&F Industries, Inc., supra;64 Great American Products, supra.
With regard to the alleged statements, which Frank Settecase
attribute to him, notwithstanding that Jones appeared to be
testifying palteringly and in a manner obsequious to Respon-
dent’s interests, other than regarding one statement, which the
latter failed to deny, I did not believe the alleged discrimina-
tee’s accounts of a June incident in Merced or the July incident
at Sacramento City College. As to the former, according to
Respondent’s Exhibit 4, the work schedule for Respondent’s
paving crews for March through the end of August, and con-
trary to the testimony of Settecase, Anson Jones’ slurry seal
crew did not work on any jobs in Merced during June, July, or
August, and there is no record evidence that the document is
inaccurate or feigned. Moreover, while Settecase testified that
Jones uttered his asserted comments in a motel corridor, as the
Jones crew worked almost exclusively within the Sacramento
area, it does not seem likely that the employees on Jones’ crew
stayed together at a Sacramento-area motel for such work. In
these circumstances, the alleged discriminatee’s uncorroborated
account of a conversation in a Merced motel hallway appears to
be rather dubious, and I credit Jones’ denial of the statements,
which Settecase attributed to him during the alleged Merced

64 I am cognizant that, in D&F Industries, Inc., supra, the Board
found direct evidence that the individuals acted as conduits of informa-
tion from the respondent to the employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD248
incident in June. As to the second incident, Jones failed to
deny, and I find, that, in July Jones’ crew was working on a job
at Sacramento City College; that, one afternoon, LIU agents,
who had been leafleting at the jobsite, placed a flyer underneath
a windshield wiper of Jones’ pickup truck; that Jones “ripped”
the flyer off of his windshield and, in the presence of the em-
ployees on his crew, “said that if that asshole puts any more shit
on my windshield, I’m going to kick his ass.” However, I do
not believe the remainder of Settecase’s testimony regarding
further comments, which he attributed to Jones on this occa-
sion. What Jones allegedly said involved potential unfair labor
practices, and, after initially answering “no” when asked if he
recalled Jones saying anything else, the alleged discriminatee
was able to recount Jones’ asserted additional comments only
upon prompting by leading questions, asked by counsel for the
General Counsel. Given the significance of such testimony and
my doubts as to his candor, I am unable to credit what I con-
sider to be dubitable testimony by Settecase. The Board has
held that threats of physical violence against union agents,
which are uttered by an employer’s representative in the pres-
ence of his employees, constitute unlawful, coercive conduct,
and I believe Jones’ threat against the union handbillers, in the
presence of members of his slurry seal crew, constituted con-
duct violative of Section 8(a)(1) of the Act. Dayton Hudson
Corp., 316 NLRB 477, 483 (1995); Circuit-Wise, Inc., 309
NLRB 905, 910 (1992).65
As to the final alleged violation of Section 8(a)(1) of the Act,
Respondent does not dispute that, effective July 14, it raised the
amount of daily subsistence pay for its employees, who were
working in excess of 75 miles from Sacramento, from $50 to
$57.66 I note that, in its memorandum announcing the increase,
Respondent asserted that subsistence would not be paid in
“99%” of the areas outlined in the Associated General Contrac-
tors subsistence map. Moreover, Respondent’s underlying
rationale for its act is best explained by Mike Wallen’s com-
ment to Jimmy Isaacs regarding Respondent’s cessation of
subsistence payments to him for work within the Sacramento
area—“I can thank the [LIU] for that. Because of the Union, it
had make Jeff Reed mad.” Wallen denied that Respondent
increased subsistence pay for its employees to slow or deter
their support for the LIU and asserted that Respondent imple-
mented the increase based upon comments to its foremen by
employees on their crews and after a secretary conducted a
“survey.” However, neither any foreman nor the secretary,
who assertedly conducted the so-called survey, was called as a
witness to corroborate Wallen, whom I found to be an untruth-
ful witness, and Respondent also failed to offer the survey itself
as corroboration. In these circumstances, I must draw the in-
ference that no corroboration for Wallen’s testimony exists, that
he fabricated his testimony, and, therefore, that Respondent
implemented the increase in order to retaliate against the union
organizing campaign. In these circumstances, including the

65 In accord with my findings, I shall recommend dismissal of pars.
(a), (b), (d), and (e) from the consolidated complaint in Cases 20–CA–
30721–3, 20–CA–30721–4, and 20–CA–30721–5.
66 Counsel for the General Counsel ignored this allegation in her
posthearing brief.
numerous other violations of Section 8(a)(1), which I have
previously determined, I conclude that, however nominal it
may appear,67 Respondent’s increase of its employees’ daily
subsistence payment was likewise violative of Section 8(a)(1)
of the Act. Capitol EMI Music, 311 NLRB 997 (1993).
Turning to Respondent’s layoff of John Michael Shawn
Emminger from May 13 until June 3 and Respondent’s layoff
of employees Frank Settecase, Eric Henderson, and Patrick
McQuerry from August 22 until late September, the consoli-
dated complaints allege, and counsel for the General Counsel
argues, that Respondent’s acts were undertaken in violation of
Section 8(a)(1) and (3) of the Act. In this regard, traditional
Board law is well settled. Thus, as explained by the Board in
Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999), pursuant
to Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir.1981), cert. denied 455 U.S. 989 (1981), approved
in Transportation Management Corp., 462 U.S. 393 (1983), in
order to establish a violation under Section 8(a)(1) and (3) of
the Act, the General Counsel must prove, by a preponderance
of the evidence, that antiunion animus was a motivating factor
in Respondent’s conduct. Once such a showing has been made,
the burden shifts to Respondent to demonstrate that the same
action would have taken place in the absence of, or notwith-
standing, its employees’ activities in support of the union. To
sustain its initial burden of proof, that of persuading the Board
Respondent acted out of antiunion animus, the General Counsel
must show (1) that the employees were engaged in activities in
support of a union; (2) that Respondent was aware of or sus-
pected its employees involvement in activities in support of the
union; and (3) that the employees’ activities in support of the
union were a substantial or motivating factor underlying Re-
spondent’s actions. Such motive may be established by cir-
cumstantial evidence as well as by direct evidence and is a
factual issue. FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942
(4th Cir.1965), enfg. 314 NLRB 1169 (1994). Four points are
relevant to the above-described analytical approach. First, the
Board, in determining whether the General Counsel has estab-
lished a prima facie showing of unlawful animus, will not quan-
titatively analyze the effect of the unlawful motive. The exis-
tence of such is sufficient to make the acts and conduct at issue
violative of the Act. Wright Line, supra at 1069 fn. 4. Second,
once the burden has shifted to Respondent, the crucial inquiry
is not whether Respondent could have engaged in the alleged
unlawful acts and conduct but, rather, whether Respondent
would have done so in the absence of the alleged discrimina-
tees’ support for the union. Structural Composites Industries,
304 NLRB 729 (1991); Filene’s Bargain Basement, 299 NLRB
183 (1990). Third, pretextual discharge cases should be viewed
as those in which “the defense of business justification is
wholly without merit” (Wright Line, supra at 1089 fn. 5), and
the “burden shifting” analysis of Wright Line need not be util-
ized. Arthur Young & Co., 291 NLRB 39 (1998). Finally,
regarding the latter point, “it is . . . well settled . . . when a re-
spondent’s stated motive for its actions is found to be false, the

67 Respondent does not contend that the $7 per-day subsistence in-
crease was so nominal as to be insignificant and, as such, did not arise
to an unlawful benefit.
VALLEY SLURRY SEAL CO. 249
circumstances warrant the inference that the true motive is an
unlawful one that the respondent desires to conceal.” Fluor
Daniel, Inc., 304 NLRB 970, 970 (1991); Shattuck Denn Min-
ing Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
Initially, with regard to John Michael Shawn Emminger, Re-
spondent does not dispute that it laid off Emminger from May
13 until June 3. As to whether the General Counsel met its
burden of proof and established that Respondent was unlaw-
fully motivated in doing so, there is clear record evidence that
the alleged discriminatee engaged in activities in support of the
LIU. Thus, as his testimony on these points was uncontro-
verted and partially corroborated, I find that, in March 2002,
Emminger contacted and met with representatives of the LIU
and agreed to distribute authorization cards and that he subse-
quently spoke to approximately 20 employees, including Frank
Settecase, soliciting their signatures on authorization cards in
support of representation by the LIU. Next, noting that Em-
minger himself testified that his solicitations on behalf of the
LIU always occurred after work, that he was careful not to
permit anyone to observe his activities, and that he never no-
ticed any managers surveiling his solicitations, I agree with
counsel for Respondent that there is no specific record evidence
that Respondent possessed knowledge of Emminger’s activities
in support of the LIU.68 However, “it is well established that
where there is no direct evidence, knowledge of an employee’s
union activities may be proven by circumstantial evidence from
which a reasonable inference may be drawn.” Kajima Engi-
neering & Construction, supra at 1604; Montgomery Ward &
Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th
Cir. 1996); Greco & Haines, Inc., 306 NLRB 634, 634 (1992).
The “circumstantial evidence,” necessary for such an inference
may include the employer’s demonstrated knowledge of union
activity generally amongst its employees, the employer’s de-
monstrable unlawful animus, the timing of the employer’s ac-
tion against the employee in relation to the latter’s protected
activities, and the pretextual nature of the reasons advanced for
the alleged unlawful act. Id. Herein, the record establishes
that, since the first week of May, after Jerry Morales’ conversa-
tion with Respondent’s president, Jeffrey Reed, Respondent
had been aware that the LIU was engaged in an organizing
campaign amongst its employees and that, during the May 10
“Christmas” party for Respondent’s employees, Reed specifi-
cally referred to the employees’ possible representation by
Laborers Local 185 as not being in the best “interest” of the
company. Further, as I found him the more credible witness, I
credit Jimmy Isaacs that, in July, when Wallen told him he
would no longer receive daily subsistence pay for work within
the Sacramento vicinity, the former also averred that Isaacs
could “thank Shawn for that.” While I recognize Wallen’s
comment may have been ambiguous, his meaning became clear
with his later comment to Isaacs that he could “thank” the LIU
for the cessation of his daily subsistence because the LIU had

68 In her posthearing brief, not only did counsel for the General
Counsel fail to utilize the Wright Line, supra, analytical approach in
discussing Emminger’s alleged discriminatory layoff but also she failed
to address the issue of Respondent’s knowledge of Emminger’s union
activities.
angered Reed. In addition, that Respondent harbored unlawful
animus towards the LIU seems apparent based upon Respon-
dent’s acts and conduct, which I have previously determined
were violative of Section 8(a)(1) of the Act. These acts include
Wallen’s interrogation of Emminger, his threat to Settecase of
more onerous working conditions, and his threat to deprive
Isaacs of subsistence pay for work in the Sacramento area if the
latter mentioned Respondent’s offer of such payments to other
employees, Heath’s threats of benefits losses, and Jones’ threat
of physical violence against agents of the LIU. Moreover, as
explained, in detail, below, I believe Respondent’s defense for
the alleged unlawful layoff of Emminger was a sham. Also, I
note that Respondent laid off Emminger a mere 2 hours after
Wallen interrogated him regarding whether the LIU had con-
tacted him or whether he had contacted the LIU. Finally, as
will be discussed in detail later, Respondent engaged in several
other acts and conduct, including laying off employees Frank
Settecase, Eric Henderson, and Patrick McQuerry and with-
holding subsistence pay from Jimmy Isaacs, violative of Sec-
tion 8(a)(1) and (3) of the Act. Accordingly, given the conflu-
ence of circumstances herein, including the comments of Mike
Wallen, the palpably unlawful threats uttered by Respondent’s
supervisors and agents, the nature of Respondent’s defense to
the alleged unlawful layoff of Emminger, and the timing of the
layoff of Emminger (occurring immediately after Wallen’s
unlawful interrogation of him), while not free from doubt, I
believe that the record evidence provides a sufficient basis to
infer that Respondent had knowledge of or, at least, suspected
Emminger’s involvement in the nascent organizing campaign,
on behalf of the LIU, amongst its employees. Id. Regarding
evidence of unlawful animus, while Jeffrey Reed seemingly
had no problem with LIU agents speaking to Respondent’s
employees, I have found that he also informed the employees
that the LIU was not in the best interest of Respondent, that
Mike Wallen, Michael Heath, and Anson Jones threatened Re-
spondent’s employees with loss of wages and benefits, and
bodily injury to union agents in order to induce them to cease
supporting the LIU and that Wallen blamed Jeffrey Reed’s
antipathy for the LIU as the cause the latter’s decision to cease
subsistence payments to Jimmy Isaacs. In these circumstances,
I believe, and find, that counsel for the General Counsel has
met her initial burden and established a prima facie showing
that Respondent was unlawfully motivated in laying off Em-
minger.
As to whether Respondent thereafter established that it
would have laid off the alleged discriminatee notwithstanding
his activities in support of the LIU, I initially note that the re-
cord evidence corroborated Mike Wallen’s assertion that, sub-
sequent to May 13, there was little work scheduled for Anson
Jones’ slurry seal crew. Thus, Respondent’s Exhibit 4, the
work schedule for Respondent’s paving crews, disclosed a pau-
city of work for Jones’ crew from the last week in May through
the middle of June. However, as stated above, Wallen’s de-
meanor, while testifying, was that of a deceitful witness. In this
regard, neither Jones nor Michael Heath corroborated Wallen’s
testimony that a pending job in Redding required just six or
seven employees or that Heath and he selected Emminger for
layoff because Emminger had been away from his family
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
longer than the other employees on Anson Jones’ crew. In this
regard, while both testified, neither was asked to corroborate
Wallen, and, from this failure, I must draw the inference that
neither would have corroborated him. Further, Emminger was
laid off immediately after returning from a visit to his family in
Southern California. In this regard, Heath failed to corroborate
Wallen’s assertion that Respondent’s decision to lay off Em-
minger was reached in the week prior to Emminger’s trip home,
and I agree with counsel for the General Counsel it is compel-
ling that Respondent assertedly laid off the alleged discrimina-
tee in order to afford him time with his family without ever
inquiring if the latter desired such time. Based upon my belief
that Mike Wallen was a disingenuous witness, the lack of cor-
roborating evidence, and the extraordinary and disturbing
amount of unlawful animus herein, I find that Respondent’s
defense, with regard to the alleged unlawful layoff of Em-
minger, was a canard and, therefore, that it failed to establish
that it would have laid off the alleged discriminatee notwith-
standing his activities in support of the LIU.69 Accordingly, I
believe, and find, that Respondent’s layoff of Emminger was in
violation of Section 8(a)(1) and (3) of the Act. Kajima Engi-
neering & Construction, supra.
Turning to the Respondent’s alleged unlawful layoffs of em-
ployees Frank Settecase, Eric Henderson, and Patrick
McQuerry, there is no dispute that each was laid off on August
22. As to whether counsel for the General Counsel established
a prima facie violation of Section 8(a)(1) and (3) of the Act,
Frank Settecase was uncontroverted that he executed an au-
thorization card for Laborers Local 185, which was given to
him by alleged discriminatee Emminger; that, prior to the em-
ployees’ May “Christmas” party, he spoke to Mike Wallen,
who said there were union officials sitting inside the restaurant,
and said he had been a union member at one time and would
not mind speaking to the LIU representatives; that, while on a
job in Watsonville in August, along with other employees on
Anson Jones’ crew, including Eric Henderson and Patrick
McQuerry, he attended a dinner meeting with LIU representa-
tives; and that, as shown in a newspaper photograph, he often
wore a Laborers Local 185 logo shirt over his work shirt while
working. While alleged discriminatee Henderson failed to
complete his testimony at the hearing, according to Settecase,
the former also attended the August union meeting in Watson-
ville, and, while alleged discriminatee McQuerry failed to tes-
tify at the hearing, according to Settecase, McQuerry also at-
tended the August union meeting and wore a Laborers Local
185 logo shirt at work. Concerning Respondent’s knowledge
or suspicions that Settecase, Henderson, or McQuerry were
supporters of the LIU organizing campaign, Mike Wallen failed
to deny Settecase’s account of their conversation prior to the
Christmas Party and failed to deny Settecase’s testimony that,
on the day of the employees’ dinner meeting with LIU officials
in Watsonville, he had invited the members of Jones’ crew to
dinner but was told by the employees of their scheduled dinner

69 In so concluding, I have considered that Emminger’s testimony,
that he used a company vehicle to visit his family on, at least, two or
three occasions in the 1-month period between mid-April and May 13,
appears to be blatantly untrue.
meeting. Moreover, crediting Settecase, who was uncontro-
verted, it is inconceivable that Jones failed to notice the em-
ployees on his crew wearing Laborers Local 185 logo shirts
during work, and Respondent’s agent failed to deny observing
his crew members wearing such clothing. With regard to the
existence of unlawful animus, I have previously discussed the
unlawful and coercive threats, attributed to Heath, Jones’ threat
of physical harm to union agents, and Wallen’s comment re-
garding Jeffrey Reed’s anger at the LIU. However, on this
point, I do not believe Jimmy Isaacs’ testimony regarding as-
serted comments, demonstrating Respondent’s unlawful ani-
mus, which he attributed to Anson Jones. Thus, I note that
Isaacs placed Jones comments on a nonexistent job and, in any
event, the scant record evidence, regarding the level of Sette-
case’s, Henderson’s, and McQuerry’s support for the LIU,
hardly arises to labeling them “troublemakers.” Nevertheless,
as a quantitative analysis is not required, I believe the General
Counsel offered sufficient record evidence to establish a prima
facie showing that Respondent was unlawfully motivated in
laying off alleged discriminatees Settecase, Henderson, and
McQuerry.
As to whether Respondent met its burden of proof, establish-
ing that it would have lain off Settecase, Henderson, and
McQuerry notwithstanding its unlawful animus, Respondent’s
president, Jeffrey Reed, offered a general economic defense as
Respondent’s rationale for the necessity of layoffs at the end of
August. He testified that Respondent’s revenues were signifi-
cantly lower in 2002 than in the previous year due to a lack of
available CalTrans paving jobs, upon which to bid and work,
resulting from the California state legislature’s inability to pass
a budget for the next fiscal year. According to Reed, the effect
upon Respondent was that, without any CalTrans jobs—
especially for Anson Jones’ crew, which, apparently, performed
the CalTrans jobs during the summer months, it could not af-
ford to maintain the same number of work crews as it had in the
past. While General Counsel’s Exhibit 6 does disclose that
Respondent steadily laid off employees in all job classifications
during the summer and early fall of 2002—13 including the 3
alleged discriminatees, Respondent offered no corroboration for
Reed’s assertions that, during its 2002–2003 fiscal year, Re-
spondent experienced as great as a 76-percent drop in gross
revenues from 2001 or that its August 2002 gross revenues
declined from “3.7 million” to “1.6 million.” In the latter re-
gards, “one reasonably would expect some independent cor-
roborating proof of the Respondent’s extraordinary conditions
in its business that would necessitate layoffs.” Power Equip-
ment Co., 330 NLRB 70, 75 (1999). Indeed, the Board has held
that it is “incumbent” upon an employer, who asserts an eco-
nomic defense, to proffer more than oral testimony. Reeves
Rubber, Inc., 252 NLRB 134, 143 (1980). Moreover, while
Reed stressed the effect of the lack of CalTrans work on Anson
Jones’ crew, other than Shawn Emminger, whose layoff, I have
found, was discriminatory, until the layoffs of the three alleged
discriminates—assertedly for impending lack of work—in the
last week of August, there is no record evidence of prior 2002
layoffs from Jones’ crew, and there is no corroborating record
evidence establishing a lack of work for his slurry seal crew in
VALLEY SLURRY SEAL CO. 251
September.70 In fact, I note that the work schedule for Respon-
dent’s paving crews, Respondent’s Exhibit 4, which ends in
August, discloses steady work for Jones’ crew during that en-
tire month. Regarding the selections of Settecase, Henderson,
and McQuerry for layoff, while merely maintaining he adhered
to Respondent’s guidelines for selecting employees for layoffs,
other than noting neither possessed a class A driver’s license,
Wallen failed to offer any details as to how application of the
guidelines resulted in the selection of the alleged discrimina-
tees. Moreover, Wallen stated that he had considered the sen-
iority of each alleged discriminatee, and, in his position state-
ment to Region 20, Respondent’s attorney claimed that the
three had the least seniority of Respondent’s remaining squee-
geemen. However, this assertion was demonstrably untrue.
Thus, analysis of General Counsel’s Exhibit 6 discloses that, of
the 13 squeegeemen remaining on Respondent’s payroll in
August, no fewer than 8 had lower seniority than Settecase, and
three had lower seniority than Henderson. Further, at least four
squeegeemen, two traffic control employees, and two seal coat
employees had lower seniority than McQuerry. Finally, I note
that, in his position statement to Region 20, Respondent’s at-
torney directly contradicted Wallen with regard to when, in
September, Respondent offered recall to Settecase. In these
circumstances, and based upon the record as a whole, I do not
believe that Respondent has sustained its burden of proof, and,
therefore, I find that its layoffs of Settecase, Henderson, and
McQuerry violated Section 8(a)(1) and (3) of the Act.
With regard to Respondent’s elimination of subsistence pay
to Jimmy Isaacs and subsequent reinstatement of his subsis-
tence pay at a reduced rate, in accord with my belief that the
alleged discriminatee should be credited over the mendacious
Mike Wallen, I find that, prior to July, Isaacs had received daily
subsistence pay for work in the Sacramento area; that; in early
July, Wallen informed Isaacs that it was Respondent’s policy
not to give daily subsistence pay while employees were work-
ing in the Sacramento area and that he would receive no more
subsistence pay after that week; that, from July 3 through July
19, Isaacs worked jobs in the Sacramento area and received no
daily subsistence payments; that, on or about July 20, Wallen
informed Isaacs that, for work within the Sacramento area, he
would be paid 4 days of subsistence pay per week: and that,
thereafter, notwithstanding Wallen’s commitment, Isaacs was
only sporadically paid daily subsistence for work within the
Sacramento area. As to whether Respondent’s acts and conduct
were violative of Section 8(a)(1) and (3) of the Act, other than
his presence at a meeting between his stepson Emminger and
LIU official Morales, there is no record evidence that Isaacs
engaged in any activities in support of the LIU or that Respon-
dent knew or suspected Isaacs supported the LIU organizing
campaign. However, I have previously concluded that, when
Wallen informed Isaacs that Respondent would no longer pay
him daily subsistence for working within the Sacramento area,
the former added that Isaacs “could thank Shawn for that” and
that, when Wallen informed Isaacs his daily subsistence pay for

70 The Board has held that it is “incumbent” upon an employer, who
asserts an economic defense, to proffer more than oral testimony.
Power Equipment Co., supra; Reeves Rubber, Inc., 252 NLRB at 143.
work within the Sacramento area would be partially restored,
he added that Isaacs could “thank the Union” for the cessation
of his subsistence because “it had made Jeff Reed mad.” Argu-
ing that these comments reveal that Respondent acted against
Isaacs’ daily subsistence payments in Sacramento for retalia-
tory rather than business considerations, counsel for the Gen-
eral Counsel contends that “the Board has consistently held that
when Respondent punishes a third party because of the union
activity or protected concerted activity of a relative, this con-
duct violates Section 8(a)(3) of the Act.” Having considered
the Board decisions, cited by counsel, I agree that an employer,
which acts against an individual, who has not himself or herself
engaged in union or other protected concerted activities, in
retaliation for the union or other protected concerted activities
of another individual, engages in conduct violative of the Act.
Advertiser’s Mfg. Co., 280 NLRB 1185 (1986); Operating En-
gineers Local 400, 265 NLRB 1316 (1982); Dewey Bros., Inc.,
187 NLRB 137 (1970). Herein, given Wallen’s statements to
Isaacs, the record warrants the conclusion, as I stated above,
that Respondent perceived Shawn Emminger as having been a
participant in, or a supporter of, the LIU’s organizing campaign
and that Respondent acted against Isaacs in retaliation for his
stepson’s actions and Respondent’s employees’ support for the
LIU.
As to Respondent’s defense, I restate my conviction that
Mike Wallen was a perfidious and unreliable witness. In this
regard, his testimony, concerning the timing of Respondent’s
decision to change its daily subsistence payment policy and his
asserted meetings with the southern California-based employ-
ees to inform them of the policy change, was wholly uncor-
roborated. Moreover, there is no record evidence that, in July,
he treated the other employees, who continued to reside in
southern California, in an identical manner as Respondent
treated Isaacs. Further, Wallen conceded issuing no memoran-
dum to employees, announcing the policy change, and I found
his reason for not doing so unconvincing. In short, I give no
credence to his testimony on these allegations and conclude that
Respondent’s defense was nothing more than a sham. Accord-
ingly, I find that Respondent’s cessation of daily subsistence
payments to Isaacs for work within Sacramento and its sporadic
reinstatement of such payments to Isaacs were in retaliation for
his stepson’s and its employees’ perceived activities in support
of the LIU and, therefore, violative of Section 8(a)(1) and (3) of
the Act.
CONCLUSIONS OF LAW
1. At all times material, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. At all times material, Laborers Local 185 has been a labor
organization within the meaning of Section 2(5) of the Act.
3. By interrogating its employees with regard to their union
sympathies and activities, Respondent engaged in acts and con-
duct violative of Section 8(a)(1) of the Act.
4. By threatening its employees that selecting Laborers Local
185 as their bargaining representative would result in more
onerous working conditions, including loss of subsistence pay,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD252
Respondent engaged in conduct violative of Section 8(a)(1) of
the Act.
5. By prohibiting its employees against discussing their
terms and conditions of employment with their fellow employ-
ees and threatening to retaliate for such acts, Respondent en-
gaged in conduct violative of Section 8(a)(1) of the Act.
6. By informing its employees that adverse actions to their
terms and conditions of employment resulted from their support
for Laborers Local 185, Respondent engaged in conduct viola-
tive of Section 8(a)(1) of the Act.
7. By threatening its employees with adverse consequences
to their terms and conditions of employment, including reduced
wages and benefits, because of their support for Laborers Local
185, Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act.
8. By uttering threats of physical harm to agents of Laborers
Local 185 in the presence of its employees, Respondent en-
gaged in conduct violative of Section 8(a)(1) of the Act.
9. By increasing the amount of its daily subsistence pay to its
employees for work outside the Sacramento area in order to
induce them to forgo their support for Laborers Local 185,
Respondent engaged in conduct violative of Section 8(a)(1) of
the Act.
10. By laying off its employees John Michael Shawn Em-
minger, Frank Settecase, Eric Henderson, and Patrick
McQuerry because of their activities and support for Laborers
Local 185, Respondent engaged in conduct violative of Section
8(a)(1) and (3) of the Act.
11. By eliminating and, thereafter reinstating on a sporadic
basis, daily subsistence payments to its employee, Jimmy
Isaacs, for work which he performed in the Sacramento area in
retaliation for his stepson’s and its employees’ support for La-
borers Local 185, Respondent engaged in conduct violative of
Section 8(a)(1) and (3) of the Act.
12. The above-described unfair labor practices are unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
13. Unless specifically found, Respondent engaged in no
other unfair labor practices.
THE REMEDY
I have found that Respondent engaged in serious unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act. Therefore, I shall recommend that Respondent be ordered
to cease and desist from engaging in such acts and conduct and
to take certain affirmative actions, which are necessary to effec-
tuate the purposes and policies of the Act. I have concluded
that Respondent unlawfully laid off its employee, John Michael
Shawn Emminger, from May 13 through June 3, 2002,71 its
employees, Eric Henderson and Patrick McQuerry, from Au-
gust 22 through September 24, 2002, and its employee, Frank
Settecase, from August 22 through September 30, 2002, for
discriminatory reasons. Accordingly, I shall recommend that
Respondent be ordered to make each employee whole, with
interest, for any losses he may have suffered as a result of Re-

71 The General Counsel does not contest Respondent’s failure to re-
call Emminger to work after June 3.
spondent’s unlawful discrimination against him. Backpay is to
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Further, having
found that Respondent unlawfully ceased making daily subsis-
tence payments to Jimmy Isaacs from July 3–19, 2002, and,
thereafter, reinstated such payments to Isaacs on a sporadic
basis in retaliation for his stepson’s and its employees’ support
for Laborers Local 185, I shall recommend that Respondent be
ordered to make Isaacs whole with interest.72 Backpay is to be
computed in accordance with F. W. Woolworth Co., supra, plus
interest as computed in New Horizons for the Retarded, supra.
As such resulted in increased payments to its employees, I shall
not recommend that Respondent be ordered to rescind the in-
crease in the daily subsistence payments to employees, which
began in mid-July. Finally, I shall recommend that Respondent
be ordered to post a notice, informing its employees of what I
have required for it to remedy its unfair labor practices.
On these findings of fact and conclusions of law, I issue the
following recommended73
ORDER
The Respondent, Valley Slurry Seal Company, Sacramento,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees with regard to their union
sympathies and activities.
(b) Threatening its employees that selecting Laborers Local
185 as their bargaining representative would result in more
onerous working conditions, including loss of subsistence pay.
(c) Prohibiting its employees from discussing their terms and
conditions of employment with their fellow employees and
threatening to retaliate for such acts.
(d) Informing its employees that adverse actions to their
terms and conditions of employment resulted from their support
for Laborers Local 185.
(e) Threatening its employees with adverse consequences to
their terms and conditions of employment, including reduced
wages and benefits, because of their support for Laborers Local
185.
(f) Uttering threats of physical harm to agents of Laborers
Local 185 in the presence of its employees.
(g) Increasing the amount of its daily subsistence payments
to its employees for work outside the Sacramento area in order
to induce them to forgo their support for Laborers Local 185.
(h) Laying off its employees because of their activities and
support for Laborers Local 185.
(i) Eliminating and, thereafter, reinstating at a reduced rate,
daily subsistence payments to its employees for work per-

72 I recognize that this time period includes the July 4 holiday and 2
weekends. I shall leave it to compliance to determine whether Isaacs
would have been paid subsistence for those days absent Respondent’s
discrimination against him.
73 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
VALLEY SLURRY SEAL CO. 253
formed in the Sacramento area in retaliation for their relatives’
and its employees’ support for Laborers Local 185.
(j) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Immediately make John Michael Shawn Emminger,
Frank Settecase, Eric Henderson, Patrick McQuerry, and
Jimmy Isaacs whole for any losses each may have suffered as a
result of its unlawful discrimination against them, in the man-
ner proscribed in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any references to the unlawful layoffs of employes,
Emminger, Settecase, Henderson, and McQuerry, and the ces-
sation of subsistence pay to Isaacs and, within 3 days thereafter,
notify each of them, in writing, that this has been done and that
the respective layoffs and cessation of subsistence pay will not
be used against them in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Sacramento, California, copies of the attached notice
marked “Appendix.”74 Copies of the notice, on forms provided
by the Regional Director for Region 20, 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. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 13, 2002.
(e) 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.

74 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.”