K-Air Corporation

National Labor Relations Board - Board Decisions

Jan 16, 2014

360 N.L.R.B. 143 (N.L.R.B. 2014)

K-AIR CORP. 143
360 NLRB No. 30
K-Air Corporation and Sheet Metal Workers Local #
67, a/w Sheet Metal Workers International As-
sociation. Case 16–CA–091326
January 16, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On May 30, 2013, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions, a supporting brief, an answering brief,
and a reply brief. The General Counsel filed cross-
exceptions, argument in support, and a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions
except as set forth below, and to adopt his recommended
Order as modified and set forth in full below.2
We briefly address four aspects of the judge’s deci-
sion. (1) We affirm his finding that the Respondent,
through its owner and president, Kyle Villarreal, unlaw-
fully interrogated employees John Vega and Justin Reed-
er. (2) We reverse his finding that the Respondent did
not unlawfully threaten employees who were union
members. (3) We affirm his finding that the Respondent
unlawfully discharged Vega for his former union mem-
bership. (4) We defer to compliance the issues of wheth-
er Vega is disqualified from reinstatement due to an al-
leged prior conviction and related misrepresentation on
his employment application,3 and whether backpay for
Vega is tolled as of the date the Respondent completed
the project on which Vega was hired.
1. The judge found that, in separate conversations on
September 24, 2012,4 President Villarreal unlawfully
interrogated employees Vega and Reeder about their
union affiliations. We agree that those interrogations

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 shall modify the judge’s recommended Order to provide for
the posting of the notice in accord with J. Picini Flooring, 356 NLRB
11 (2010).
3 Accordingly, we will omit from the Order the usual 14-day dead-
line for an offer of reinstatement to be made. See Galicks, Inc., 354
NLRB 295, 300 (2009), incorporated by reference in 355 NLRB 366
(2010).
4 All dates are in 2012.
were unlawful for the following reasons:5 Villarreal was
the Respondent’s owner; he initiated both conversations;
his direct and repeated inquiries as to whether Vega and
Reeder were union members clearly connoted disapprov-
al and hostility;6 neither employee was known to be a
past or present union member; and both employees min-
imized their union connections in response.
2. We disagree, however, with the judge’s finding that
the Respondent did not unlawfully threaten employees.
In making that finding, the judge overlooked President
Villarreal’s statement to employee Reeder that he, Villar-
real, “had no interest in having” or “did not want” union
members as employees.7 We find that Villarreal’s state-
ment would reasonably convey to Reeder that Villarreal
did not intend to knowingly employ union members and
thus was unlawful.8
3. The judge found that the Respondent unlawfully
discharged employee Vega. For the reasons that follow,
we agree.
Villarreal interviewed and hired Vega on Friday, Sep-
tember 21, to start work the following day in the con-
struction of a LA Fitness facility in San Antonio, Texas.
Vega was a former member of the Charging Party, Sheet
Metal Workers Local 67, but he did not inform Villarreal
of this fact.
On the afternoon of Tuesday, September 25, Foreman
Roger Trinidad assigned Vega to refasten a “unistrut”
(strut) that was holding an elevated plenum in place but

5 See generally Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984) (identifying variety of factors the Board considers in examining
alleged unlawful interrogations), affd. sub nom. Hotel Employees Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
6 Villarreal also asked Reeder whether Vega and two other employ-
ees were union members, stating that he “had no interest in having” or
“did not want” union members on the job. Below, we find that this
statement was an unlawful threat, which further supports finding Villar-
real’s questioning of Reeder coercive. See, e.g., Demco New York
Corp., 337 NLRB 850, 851 (2002). In any event, Villarreal appeared to
be seeking information upon which to take action against individual
employees, which supports a finding of coercion regardless whether the
statement was unlawful. Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964).
7 In dismissing the threat allegation, the judge considered a different
conversation, in which Villarreal told Vega, “I don’t want that to hap-
pen here,” referring to an unfair labor practice charge that Reeder had
filed against a previous employer. The General Counsel did not except
to the judge’s finding that this comment was “more a reference to un-
fair labor practice charges, rather than Union membership, and does not
violate the Act.” That finding consequently is not before us.
8 See Skill Staff of Colorado, 331 NLRB 815, 821 (2000) (employer
statement, overheard by an employee, that employer could not have and
did not want union employees on the job was unlawfully coercive).
Although not necessary to our finding, we reiterate that Villarreal made
that statement contemporaneously with his unlawful interrogation of
Reeder, adding to its coerciveness even as the threat reinforced the
coerciveness of the questioning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD144
had been installed incorrectly by another employee.
Finding that the strut would require welding to fasten it
properly, Vega began to do what he could to fix the strut
in place temporarily until a welder could work on it. At
3:30 p.m., the regular quitting time, Trinidad told Vega
to stop work. Vega replied that he had not finished
working on the strut, but Trinidad told him “[t]he day’s
over, there’s no overtime.”
Shortly after leaving work, Vega received a call from
Villarreal asking if he had installed the strut in question.9
Vega said he had not, and offered to show Villarreal a
video he had made on his cell phone showing how the
strut looked when he started to work on it. The judge
implicitly credited Vega’s testimony that he explained to
Villarreal that he had done as much as he could to repair
the strut in the time allotted.10 Villarreal then told Vega
he did not have the money to pay him for additional
work. Vega said he needed the job and could wait 2 or 3
weeks to get paid, but Villarreal refused to keep him on.
Vega returned to the jobsite the next day, Wednesday,
to pick up his tools, and there met a former coworker
who told Vega that Villarreal had hired him and another
worker that day. When Trinidad arrived for work that
day, he asked Villarreal where Vega was. Villarreal said
he could not afford to pay Vega and told Trinidad, “You
want to get paid, right? Well I have to have enough
money to pay all of you.”
As stated, we agree with the judge’s finding that the
Respondent unlawfully discharged Vega because of his
former union membership. There is no question that
Vega previously had engaged in union activity and that
the Respondent, in part through its unlawful interroga-
tions, became aware of that activity. The record estab-
lishes the Respondent’s animus toward union activity
generally and Vega’s former union affiliation specifical-
ly. Animus is shown by Villarreal’s unlawful interroga-
tions, his threat to Reeder that he “had no interest in hav-
ing” or “did not want” union members on the job, his
failure to ask Trinidad whether Vega had installed the
strut,11 and the timing of Vega’s discharge 1 day after
Villarreal learned of his former union affiliation.12
Moreover, in discrediting Villarreal’s shifting rationales

9 Villarreal never asked Trinidad who had improperly installed the
strut.
10 In addition to crediting Vega, the judge found Villarreal “clearly
the least credible of the witnesses at the hearing.”
11 E.g., Windsor Convalescent Center of North Long Beach, 351
NLRB 975, 984 (2007) (suspicious failure to investigate employee’s
purported misconduct supported an inference that discharge was unlaw-
fully motivated), enf. denied on other grounds sub nom. S & F Market
Street Healthcare LLC v. NLRB, 570 F.3d 354 (D.C. Cir. 2009).
12 E.g., L. B. & B. Associates, Inc., 346 NLRB 1025, 1026 (2006),
enfd. 232 Fed. Appx. 270 (4th Cir. 2007).
for firing Vega—initially, that he could not afford to re-
tain Vega (even as he hired two new employees the day
after Vega’s discharge), and later that Vega was incom-
petent—the judge found in effect that both rationales
were pretextual, further supporting an inference, which
we draw, that the real reason for Vega’s discharge was
his union affiliation.13 In sum, the General Counsel has
met his initial burden, under Wright Line,14 to establish
that animus against Vega’s former union affiliation was a
motivating factor in his discharge. Because the Re-
spondent’s defenses were pretextual, there is no need to
further assess them under Wright Line’s second step,
which is applicable in mixed-motive cases.15 We there-
fore adopt the judge’s conclusion that Vega’s discharge
violated Section 8(a)(3) and (1) of the Act.
4. The Respondent contends for the first time in its
exceptions that Vega should not be reinstated on the
ground that he falsely stated on his job application that
he had no criminal convictions. The Respondent alleges
that, after the hearing in this case concluded, it discov-
ered that Vega was on parole from a 10-year sentence for
a serious felony conviction. It cites both Vega’s misrep-
resentation and the conviction itself as independent bases
for not reinstating him. The Respondent also contends
that Vega’s backpay period should extend no later than
December 12, when the project on which he was em-
ployed ended, on the ground that the Respondent had no
equivalent employment for him after that date. Because
the record before us is inadequate to determine the merits
of the Respondent’s assertions, we leave them for resolu-
tion in the compliance proceeding.16
ORDER
The National Labor Relations Board orders that the
Respondent, K-Air Corporation, San Antonio, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from

13 See Control Building Services, 337 NLRB 844, 845 (2002) (em-
phasizing that evidence of pretext may be significant evidence of anti-
union animus).
14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
15 See United Rentals, 350 NLRB 951, 952 (2007); Golden State
Foods, 340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). Member
Miscimarra does not agree that it is unnecessary to reach the second
stage of Wright Line (which in mixed-motive cases requires the em-
ployer to establish that the employer would have taken the same action
even in the absence of unlawful motivation), but he concludes that the
record fails to support a finding that the employer has satisfied this
burden in the instant case.
16 With respect to prior misconduct, see Ads Electric Co., 339
NLRB 1020 fn. 3 (2003); Berkshire Farm Center, 333 NLRB 367
(2001); Arrow Flint Electric, 321 NLRB 1208, 1210 (1996).
K-AIR CORP. 145
(a) Coercively interrogating employees regarding their
and other employees’ membership in Sheet Metal Work-
ers Local #67, a/w Sheet Metal Workers International
Association (the Union) or any other labor organization.
(b) Threatening not to hire or employ individuals who
are members of the Union or any other labor organiza-
tion.
(c) Discharging or otherwise discriminating against its
employees because of their affiliation with or activities
on behalf of the Union or any other labor organization.
(d) In any like or related manner interfering with, re-
straining or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer John Vega full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
(b) Make Vega whole for any loss of earnings and oth-
er benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the judge’s decision.
(c) File a report with the Social Security Administra-
tion allocating Vega’s backpay to the appropriate calen-
dar quarters, and compensate Vega for any adverse in-
come tax consequences of receiving his backpay in one
lump sum.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Vega, and within 3 days thereafter, notify him
in writing that this has been done and that the discharge
will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in San Antonio, Texas copies of the attached
notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized repre-

17 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.”
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, 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 em-
ployees and former employees employed by the Re-
spondent at any time since September 24, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your
membership, or about other employees’ membership, in
Sheet Metal Workers Local # 67, a/w Sheet Metal Work-
ers International Association (the Union), or any other
union.
WE WILL NOT threaten not to hire or employ you for
being a member or supporter of the Union or any other
union.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting or being a member of
the Union or any other union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL offer John Vega full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL make John Vega whole for any loss of earn-
ings and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of Vega, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
K-AIR CORP.
Roberto Perez, Esq. and Jonathon Elifson, Esq., for the General
Counsel.
Melissa Fletcher, Esq. (Goode, Casseb, Jones, Riklin, Choate
& Watson), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in San Antonio, Texas, on April 8, 2013. The
amended complaint herein, which issued on March 26, 2013,
and was based upon a charge and an amended charge that were
filed on October 15, 2012,1 and December 6 by Sheet Metal
Workers Local # 67, affiliated with Sheet Metal Workers Inter-
national Association, herein called the Union, alleges that on
about September 24, K-Air Corporation, herein called the Re-
spondent, by Kyle Villarreal, its president, interrogated em-
ployees about their union activities and coerced and threatened
them with unspecified reprisals because of their union activi-
ties, and on about September 25 discharged John Vega because
of his Union and protected concerted activities, in violation of
Section 8(a)(1)(3) of the Act. In addition to denying the sub-
stantive allegations of the complaint, Respondent defends that
Vega was an independent contractor and not an employee with-
in the meaning of the Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE FACTS
This hearing involves the discharge of Vega after 3 days of
employment with the Respondent. Vega is a journeyman sheet
metal worker who has been a member of the Union since 1996.

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2012.
However, between January 2011 to November he was not a
member in good standing because he moved from San Antonio,
where the Union is located, to Houston, where he was under the
jurisdiction of a different local union, until returning to San
Antonio. Prior to working for the Respondent, he was em-
ployed by Swisher, another HVAC employer for about three
days, performing sheet metal work. Justin Reeder, a friend,
who was working for the Respondent, told Vega about the job,
and said that he should call Villarreal and he gave him his tele-
phone number. Vega called the number and when Villarreal
didn’t answer, he left a message with his name, telephone num-
ber, and work experience, saying that he knew Reeder and was
looking for work and that he was told that the Respondent had a
job at a LA Fitness location. Villarreal returned his call about
15 minutes later and Vega told him of his work experience and
that he had just finished working at another LA Fitness job, and
Villarreal agreed to interview him. They met at a small mall
located at a nearby gas station and Villarreal told him that his
company was growing from residential to light commercial
work and that he was looking for people to staff his jobs and to
work as foremen. Vega told him of his experience and Villar-
real said that he would hire him to start at $17 an hour. Vega
said that he was earning $18 at the other LA Fitness job and
Villarreal said that he would see how he worked out for a cou-
ple of weeks and that they would talk about it again at that
time. Villarreal asked if he could start the next day, Saturday,
September 22, and Vega said that he could, and he told Vega to
report for work at 7 a. m. Villarreal testified that at the conclu-
sion of the interview, he did not tell Vega what time he had to
be at the LA Fitness jobsite (the jobsite), the following day.
Rather he told him that the other employees normally arrived at
6:30 or 7 a. m.
A. Garcia and Villarreal
Gilbert Garcia, an organizer for the Union, testified that on
August 16 he went to the jobsite, as he does for all jobsites that
he is aware of, in order to obtain work for union members. He
met with the project superintendent for the general contractor
and asked who was performing the HVAC work at the site, and
he was told that it was the Respondent. Garcia asked if the boss
was on site and he was told that he wasn’t, and he left his busi-
ness card with the project superintendent, who said that he
would give the card to the owner of the HVA company, and
Garcia left the jobsite. About 2 days later Villarreal called
Garcia’s telephone number and left a voice mail, asking what,
if anything, Garcia wanted. Garcia was out of town at the time,
and called him back when he returned 2 weeks later. Garcia
identified himself and asked Villarreal if he needed any man-
power for the job and he answered that he didn’t have time at
that moment to speak. Garcia asked if they could meet, and
Villarreal said that he was going out of town. Garcia asked if
they could meet when he returned, and Villarreal said that he
was going to be gone for a while. Garcia asked him to call him
when he returned, but Villarreal never returned the call. On the
following day, Garcia went to the jobsite “. . . to see if I could
get a hold of him before he left for out of town,” but one of the
employees said that he had just left.
K-AIR CORP. 147
Villarreal testified that the project superintendent gave him
Garcia’s card, which identified him as being employed by the
Union, and he called Garcia and left a voicemail for him: “I
called to hire a couple of the Union members, workers in sheet
metal . . . I wanted to work with them. I wanted to hire them. I
wanted to bid things with them. Unfortunate that it worked out
this way, but I have a very pro union [sic].” When Garcia called
him back, he no longer needed any additional employees, and
since then he has not called the Union because he has lost jobs
and didn’t have any commercial work.
B. Vega’s Employment with Respondent
Vega reported for work at 7 the next morning (September
22) wearing a hard hat and a safety vest, both of which had the
name of a unionized HVAC company, Brandt Engineering,
herein called Brandt, which is located in San Antonio and Dal-
las. He testified that he wore these items because he had been
out of work for so long that he didn’t have these items, so he
borrowed them from his brother who works for Brandt and had
an extra hard hat and vest. Villarreal testified that on Saturday,
September 22, Vega was wearing a hard hat without an insig-
nia. Vega met with Villarreal, who introduced him to the other
employees and told them what work needed to be focused on,
where they needed to be and what they needed to do. Vega was
instructed to work in the pool area, where he spent most of the
day working with the sheet metal vents and the aluminum duct
work. Villarreal was away most of the day and Vega did not see
him again until the end of the workday. At that time, he asked
Vega if he knew anything about an altercation involving Reeder
at Swisher that Reeder had filed a Board charge about. Vega
told him that he didn’t know anything about it as he had left
Swisher’s employ before it had occurred. Villarreal told Vega
that, “. . . he didn’t want that to happen to his company, what-
ever it was happening over there” and then asked Vega to fill
out a time card, which he did, and returned it to Villarreal, who
told him that he did a great job that day and told him to report
for work Monday morning.
Villarreal testified that he arrived at the jobsite at about 11
that day and remained there for about an hour observing the
work being performed at the site. As to what work Vega was
supposed to perform that day, he testified: “He was supposed to
know what he needs to do as an independent contractor. I told
him that anything needs to get fixed and repaired, let me know
and make advices [sic] and install duct work.” He also went
over the work prints with him and told him what needed to be
done. He returned to the jobsite at about 3 p. m. and asked Ve-
ga if he was able to find any problems. At the end of that day,
Vega and two other employees at the jobsite filled out an “Em-
ployee Timecard,” actually, a piece of paper, stating that he
arrived for work at 7 a.m. and left at 3:30 p. m. Villarreal testi-
fied that he believes that he told Vega to fill out the timesheet.
Vega next reported for work on Monday, September 24 at 7
a. m., again wearing a Brandt hat and vest. At 6:30 a. m. he
received a call from Reeder saying that start time was 6:30 a.
m.; Vega said that since start time on Saturday was 7 a. m., he
thought that was the usual start time. Because he had the prints
for the job, he said that he would be there shortly, as he lived
around the corner from the jobsite. When he arrived, he apolo-
gized to Villarreal, who told him not to worry about it, but from
then on, to be at work at 6:30 a. m. He testified that another
mechanic employed by the Respondent, “Albert,” said that he
recognized him as a union member from another job, and Vega
asked him not to say anything to Villarreal about it. Later, he
saw Roger Trinidad, a union member who began working for
the Respondent on September 20, and became the foreman a
few days later, was also wearing a Brandt hard hat. At the end
of the day, as he was preparing to leave, Villarreal stopped him
and said that he noticed the Brandt name on his hard hat and
asked if it was a union company. Vega said that it was, but that
the hat belonged to his brother and since he had been out of
work, he borrowed the hat from his brother. Villarreal then
asked him if he was union and he said that he wasn’t; he had
been a union member, but he had been out of work and he was
no longer in good standing. Villarreal asked him again if he
was union, and he told him, again, that he was in the Union, but
not in good standing, and that he was there just to make a liv-
ing. Villarreal said that he would buy him a new hard hat,2
Vega said that was fine, filled out the timesheet for the day, and
left.
Villarreal was questioned by counsel for the General Coun-
sel regarding a brief conversation that he had with some em-
ployees (including Vega) at the jobsite about unions. The ques-
tions were asked while Villarreal had his affidavit given to the
Board in order to refresh his recollection. Counsel for the Gen-
eral Counsel began by asking if he overheard employees talking
about the Union, at that time, pointing out the portion of the
affidavit referred to; Villarreal initially answered: “No, I don’t
believe so.” When asked if he overheard employees discussing
the Union, he answered: “I don’t recall if they did, but if they
did . . . I believe I asked them a few questions.” With some
prompting he testified that he overheard Vega saying that he
was not in the Union and one of the other employees saying
that union members make $35.90 an hour. Villarreal then
asked, “Do union people make that much?” and, “Are you in
the Union?” Vega then said, “You can’t really talk about that”
and Villarreal said that some jobs pay more than $35.90 an
hour, and concluded the conversation by saying, “Why are we
talking. Let’s get back to work.”
Reeder testified that on a Monday in September (which he
mistakenly identified as September 22), while in the parking lot
in front of the building, Villarreal again asked him about his
unfair labor practice charge against Swisher and also asked him
if he was a member of the Union and Reeder said that he wasn’t
a union member. Villarreal said that he had no interest in hav-
ing union members on the job and Reeder said that he didn’t
know who were members of the Union as he had only recently
moved to the area. Villarreal asked if Brandt is a union compa-
ny, and Reeder answered that he believed that it was. Villarreal
asked him if he had recommended union employees, and if
Vega, George, and Albert were members of the Union. He an-
swered that Vega had previously been in the Union, but his
union was out of a different local and he didn’t believe that he

2 In an affidavit given to the Board, Villarreal stated that he “. . .
was sort of ticked because I did not want to see another company’s logo
on my job.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD148
was an active member, and that he didn’t know the other em-
ployees, Albert and George.
Sometime that day, Monday, Villarreal pointed out some
work in the pool area, about 25 feet from where Vega was
working, that had been performed improperly in that it had
been assembled with galvanized steel rather than aluminum.
Villarreal asked him who did the installation, and he said that
he didn’t know as it was installed before he started working in
the area, but Vega agreed that it was installed improperly. Vil-
larreal was asked by counsel for the General Counsel seven
times wasn’t it true that he knew that Vega did not do the im-
proper installation, as stated in the affidavit that he gave to the
Board, but he refused to admit it, answering that he wasn’t
there when the installation was performed (five times) and that
counsel for the General Counsel should ask Trinidad who per-
formed the installation. Villarreal testified that he asked Trini-
dad that day about the improper duct work, and that Trinidad,
“. . . wasn’t clear on it.”
Vega reported for work on Tuesday September 25 at 6:30
a.m. again wearing his Brandt hard hat and vest. He testified
that Trinidad, the foreman that day, told him to work in the
pool area and replace a metal drive that was improperly in-
stalled on an aluminum duct. Later, Villarreal approached them
yelling, “What is this shit? You are supposed to be looking out
for K-Air. This isn’t the kind of work we do.” Vega told him
that he didn’t do the work involved and Villarreal told Trinidad
that since he is the foreman, he is responsible for the work, and
the next time it happened, he would be fired along with the
employee who did the work. Vega then got on the lift to replace
the metal drive with an aluminum drive, which took about 30 to
45 minutes. After completing that job, he worked with Trinidad
for some time. Shortly before lunch, Trinidad walked away,
and when he returned he asked Vega, “Did Kyle ask you if you
are union?” Vega said that he did, and Trinidad said that he
asked him as well, and Vega told Trinidad that he told Villar-
real that although he was a member of the Union, he was not in
good standing because he had moved. This conversation ended
at lunch time, and Villarreal took the employees to lunch that
day telling them that he was looking for a good crew of em-
ployees so that he could expand his business from residential to
commercial. At about 1:45, Trinidad told him of a “unistrut”
that was holding a plenium in the dressing room at the jobsite
that had to be repaired. It was installed incorrectly, wasn’t fas-
tened to the building and there was a real danger of it falling
and killing somebody, and Vega was told to fasten it and repair
it. Because it had been improperly done, and he thought that
Villarreal would want to see it, he recorded it on his cell phone.
He had to locate baling wire to hold it temporarily until it could
be permanently repaired and he worked on it until the end of
the day when Trinidad told him to come down. Vega told him
that he had not completed the job, and Trinidad told him that it
didn’t matter; Villarreal wanted him and was distributing the
pay checks: “The day’s over, there’s no overtime.” He went to
the gangbox and Villarreal told him to complete an employ-
ment application, which he did, and to fill out a W-9 form.
Vega told him that he didn’t know what that was as he had
never done one before, but Villarreal insisted so he completed
that form as well. Villarreal asked if he could get him another
hard hat, and Vega said that he didn’t have a problem with that,
he filled out his timesheet and left.
Reeder testified that he was working on the roof of the
jobsite when he saw that the unistrut needed to be repaired, as
quickly as possible, because of the danger that it entailed, and
Vega was assigned to repair it, although he did not install it; it
was installed before they got there. He also testified that Vega
was discharged at about noon on Tuesday, September 25, while
he was at a hospital with an employee who had been injured.
Trinidad testified that when he arrived for work on Tuesday,
September 25, Vega was not there, and he asked Villarreal
where Vega was and he told him that he didn’t have the money
and couldn’t afford to pay him and that he told Vega “to stay
home.” Trinidad asked why, and Villarreal said, “You want to
get paid, right? Well I have to have enough money to pay all of
you.” Trinidad worked part of that day, September 25, but felt
uncomfortable with the idea that there might not be enough
money to pay him, so he told Villarreal that he was quitting
with “no hard feelings” and Villarreal gave him the amount that
was owed him. Trinidad also testified that Reeder, who was
working on the roof of the jobsite on Monday, September 24,
told him that the duct was not properly fastened, and at about 2
p. m. , Trinidad told Vega to fix the hangers on the duct be-
cause they were incapable of holding it, and Vega began to
repair it. At 3:30 p. m.Trinidad told him to come down: “I told
him, hey, there’s no overtime on this job. Let it go, we’ll get it
tomorrow, because it was already repaired. . .” He felt that the
job had been completed to his satisfaction, and that there was
no longer any danger because of it. They all left for the day,
and Villarreal never asked him about the strut.
Villarreal testified that he did not speak to Vega before he
left work on the afternoon of Tuesday, September 25, but he
called him after seeing the struts that Vega had been working
on prior to leaving for the day: “to me, that’s not . . . good qual-
ity work, plus safety hazard, plus just horrible job that can be
very dangerous to people.” In the call, he asked Vega if he had
worked on that job and he said that he had. Villarreal asked if
he finished repairing it, and he said no, and when Villarreal
asked him, “Why is that?” Vega answered, “That’s the best I
can do.” Villarreal testified that this response was very disap-
pointing and he was hoping that Vega would offer a good ex-
cuse so that he would not have to let him go, but Vega was
“nonchalant” about it and because Vega’s work wasn’t up to
his standard, he told him that he doesn’t have extra money to
pay for mistakes and he again asked Vega to “give me a good
reason,” and again he said that’s the best he could do, and he
discharged him. On the following day, Frankie Sanchez, a
helper, repaired this dangerous situation; he testified that it took
Sanchez about an hour and a half to correct the problems.
Sanchez was employed by the Respondent for about 2 or 3
months beginning in about September. He was not at work on
Vega’s final day of employment for the Respondent, but on the
following day Trinidad directed him to repair the strut that
Vega had worked on that day; it took him about an hour to
complete the repairs. George Subirias, who was employed by
the Respondent for about 3 or 4 weeks beginning in about early
K-AIR CORP. 149
September3 testified that while employed there, he told Villar-
real that the work that Vega and Reeder performed showed that
they were not as experienced as they claimed to be. He ob-
served the strut in question and testified that it was very precar-
ious: “And I didn’t see how anybody claiming to be a mechanic
would do something like that. It was just an accident waiting to
happen, in my opinion.” On the morning after Vega’s dis-
charge, Trinidad asked Subirias to repair it, and while examin-
ing it, other employees told him that Vega had performed the
work on the struts.
Vega testified that shortly after leaving work on September
25 he received a call from Villarreal asking if he had installed
the unistrut involved herein and he said that he hadn’t, but that
he had a video of it that he could show him. He told him that
although he didn’t install it, he temporarily fixed it, although it
needed to be welded. Villarreal told him that he didn’t have
money to pay him, and Vega told him that he needed the job
and could wait 2 or 3 weeks to get paid, but Villarreal refused
to relent. Vega returned to the jobsite the next day picked up his
tools and while there he met a former coworker, George Du-
arte, who told him that Villarreal had hired him and another
worker that day. On cross examination, Vega was asked by
counsel for the Respondent whether he told Villarreal, “That’s
the best I can do” in his telephone conversation with him on the
afternoon of September 25, and he answered: “Yes.” On redi-
rect, counsel for the General Counsel asked him what he meant
by that statement, and he testified:
To repair it, that was the best of my ability with the material
that I had. That was the best that I can fix it to where it needed
attention tomorrow. It needed to be welded. That’s all I can do
temporarily. That was the best I can do temporary, and I was
wrapping it with baling wire to secure that stud from shifting
. . . so it wouldn’t fall until somebody can get in there with a
welder and weld it.
In answer to a question from me, he testified that the state-
ment that he made to Villarreal was: “That’s the best I can do at
the moment.”
C. Independent Contractor Status
As stated above, in addition to defending that Vega was dis-
charged because of poor work performance, Respondent de-
fends that he was an independent contractor rather than an em-
ployee within the meaning of the Act. As he only worked for
the Respondent for 3 days, there is a limited amount of evi-
dence on this subject. Vega testified that when he was hired
Villarreal told him that he would be earning $17 an hour and,
when Vega told him that he was earning $18 an hour at his
prior job, Villarreal said that after a couple of weeks employ-
ment he would see how his work was, and they would discuss a
pay raise and possibly his becoming a foreman after that. There
was no discussion of his being an independent contractor. He
was told to be at the jobsite at 7 the next morning. He filled out
an undated Employment Application and on September 22, he
filled out an “Employee Timecard,” actually a sheet of paper,

3 He mistakenly testified that Vega was employed there when he
began and was still there after he left the Respondent’s employ.
along with two other employees, stating that he worked from 7
to 3:30, and he was paid in cash for that day. He also filled out
a timecard for September 24 and 25, and was paid by check for
these 2 days, and on September 25, he completed a W-9 form at
Villarreal’s request, although he did not know what it was and
had never previously filled out such a form. He testified that
Villarreal told him that it was for tax purposes for Villarreal.
Vega does not operate his own business, or carry his own in-
surance, and Villarreal chose the order of the work that was to
be performed, the hours worked and the time for lunch. Vega
incurred no work expenses, and brought his own hand tools to
the job, while the Respondent provided the power tools. Reeder
also testified that he provided his own hand tools for the job,
was directed by Villarreal as to what work, as well as the order
of work, to perform, and what hours to work, and he could not
employ a substitute for himself, and he did not incur any ex-
penses on the job, other than the cost of fuel driving to work.
On September 20, about a week after Reeder began his employ
with the Respondent, he completed a W-9 form, and on Octo-
ber 5, he entered into an agreement with Villarreal, at Villar-
real’s request, for a different job, providing that he would be
paid $60 per grill installed for 20 grills, for a total of $1200,
with $840 of that to be kept by Reeder, and the remaining $360
to be paid to his helper on the job.
Villarreal’s testimony is not as clear because he did not an-
swer questions directly, especially while being questioned by
counsel for the General Counsel. He often answered questions
that were not asked by providing answers that he considered
favorable to his case, often by adding the words “independent
contractor.” For example, counsel for the General Counsel
subpoenaed Respondent’s records seeking all employees of the
Respondent employed at the jobsite; Vega’s name was not in-
cluded. Counsel for the General Counsel asked:
Q. So it was a mistake to leave him off the list? He was em-
ployed there. You don’t dispute that, I presume. Is that cor-
rect?
A. He was . . . worked for me for three days as independent
contractor.
Counsel for the General Counsel asked Villarreal if it were
true that he employed both employees and independent contrac-
tors at the jobsite, and he testified: “I tell all my subcontractors
and my employees that the first two weeks is a probation trial,
and three month probation period for any kind of work they
do.” He also testified: “There’s occasions that I hire employees
as employees, and there’s occasions that independent contrac-
tors, they’re good at what they do, and I wish to hire them as
W-2, and I do so. It just depends on what we agree on.” When
counsel for the General Counsel asked Villarreal to explain
why he did not supply time sheets pursuant to the subpoena
request, he testified: “I do have time sheets for employees, but I
do not have necessary time sheet for the independent contracts,
due to they have idea of amount of work they need to do, and I
don’t necessarily keep up with too much of independent con-
tractors.” He also testified that the IRS W-9 form is the form
that he employs for independent contractor agreements. The
subcontract for the jobsite was the largest job that he had per-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD150
formed, and it was the first time that he utilized independent
contractors to perform work for his company.
Later, on redirect examination, counsel for the General
Counsel asked him if it were true that W-2 employees sign
confidentiality agreements and employment agreement while
independent contractors do not, and Villarreal agreed with that
statement, but when counsel for the General Counsel showed
him subpoenaed documents for Christopher Morales, whom
Villarreal had listed as an independent contractor, specifically a
W-9 form and an Employment Agreement both dated Septem-
ber 24, it took six additional questions before he answered that
question, and even then, he attempted to explain more than was
asked of him. Subiarias, whom Respondent indicated was an
independent contractor, testified that he filled out time sheets,
but did not fill out a W-2, W-9, or an employment agreement
with the Respondent; he gave Villarreal his driver’s license and
insurance.
III. ANALYSIS
Credibility obviously, plays an important part in this case.
Counsel for the General Counsel alleges that Vega was dis-
charged on September 25 because of his union membership,
while counsel for the Respondent defends that he was dis-
charged because of his poor work quality and his statement to
Villarreal: “That’s the best that I can do.” In order of credibil-
ity, I found Villarreal to clearly be the least credible of the wit-
nesses at the hearing. As recited above, it often required coun-
sel for the General Counsel to repeat a question numerous times
before he would answer a question directly, even while in pos-
session of his affidavit which clearly set forth the answer. He
would rarely admit to anything that he felt could harm his case
without being forced to do so. While one can understand that
events that occurred more than 6 months ago are, at times, dif-
ficult to remember, it appeared to me that his memory was
selective and that he often feigned difficulty remembering only
certain facts. On the other hand, I found Vega to be a credible
witness, who appeared to be testifying to the facts as he best
remembered them. For example, in answer to a question from
counsel for the Respondent, he admitted that he told Villarreal,
“That’s the best that I can do” while later explaining what he
meant in answer to a question from counsel for the General
Counsel. Trinidad and Reeder also appeared to be credible
witnesses although they had the date of Vega’s discharge con-
fused. Trinidad testified that Vega was discharged on Monday,
September 24, because when he arrived for work on the follow-
ing day, Villarreal told him that he had been discharged the
prior day and Reeder testified that Vega was discharged at
about noon on Tuesday, September 25, while he was away
from the jobsite. Regardless of their confusion about the date of
the discharge, I find that there were attempting to testify in an
honest and truthful manner regardless of their confusion with
dates. Sanchez and Subiarias also appeared to be credible and
believable witnesses.
Counsel for the Respondent, in her answer, alleged that Vega
was an independent contractor and not an employee within the
meaning of the Act. A party asserting independent contractor
status has the burden of proof of establishing that status so that
the employee is excluded from the protection of Section 2(3) of
the Act. BKN, Inc., 333 NLRB 143, 144 (2001). In determining
independent contractor status under Section 2(3) of the Act, the
Board applies the common law agency test and considers all the
elements of the employee’s relationship with his employer and
no one factor is controlling. Roadway Package System, Inc.,
326 NLRB 842, 850 (1998). It is not necessary herein to exam-
ine these factors as the Respondent has presented no credible
evidence that Vega was an independent contractor. Vega was
told what hours and days to work, what work to perform, and
was paid by the hour. Although he brought some of his own
hand tools, the Respondent supplied the power tool and he
filled out an Employment Application and time sheets for the 3
days that he was employed by the Respondent. The only evi-
dence of independent contractor status was that on September
25, Vega was told to complete a W-9 form, even though he did
not know what it was. I therefore find, with no difficulty, that
Vega was an employee within the meaning of the Act while
employed by the Respondent.
It is initially alleged that Respondent, on about September
24, interrogated employees about their union membership, ac-
tivities, and sympathies, and those of their fellow employees,
and coerced and threatened them with unspecified reprisals
because of their union affiliations. The credited testimony of
Vega and Reeder establishes that on about September 24, Vil-
larreal interrogated them as to whether they were union mem-
bers and asked Reeder if Vega, George and Albert were union
members. It requires no case citation to establish that such a
question initiated by a boss to an employee, without any lawful
justification, violates Section 8(a)(1) of the Act. On the other
hand, I find that Villarreal’s statements to Vega regarding
Reeder’s unfair labor practice charge against Swisher: “I don’t
want that to happen here,” is more a reference to unfair labor
practice charges, rather than union membership, and does not
violate the Act. As there is no evidence to support the com-
plaint allegation that the Respondent coerced and threatened
employees with unspecified reprisals because of their union
activities, I recommend that this allegation be dismissed.
The final allegation is that the Respondent discharged Vega
on September 25 because of his Union and protected concerted
activities, in violation of Section 8(a)(1)(3) of the Act, and this
allegation is to be judged under the standards set forth in
Wright Line, 251 NLRB 1083 (1980). Under this test, the initial
issue is whether counsel for the General Counsel has made a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the Respond-
ent’s decision to terminate Vega. If that has been established,
the burden then shifts to the Respondent to establish that it
would have terminated him even in the absence of his protected
conduct. I find that counsel for the General Counsel has sus-
tained his initial burden herein. Villarreal overheard Vega dis-
cussing union wages with other employees, he asked Vega if
Brandt was a union company, and he asked him on a number of
occasions whether he was a union member; Vega told him that
he was, but was not a member in good standing. In addition,
Villarreal told Reeder that he had no interest in having union
members on the job and asked him if he had recommended
union employees to his job; he obviously was referring to Vega,
whom Reeder had initially told about the job. Finally, the cred-
K-AIR CORP. 151
ible evidence establishes that Vega did not install the unistrut in
question, and had begun to repair it when the workday ended
on September 25, when he was told by Trinidad to quit for the
day. While blaming Vega for the situation, Villarreal never
asked Trinidad about the strut even though he would have told
him that Vega had been working to repair it when the workday
ended.
I also find that the Respondent has not sustained its burden
of establishing that Vega would have been terminated absent
his protected conduct. I do not credit Villarreal’s testimony that
he was prounion, and wanted to hire union workers and work
with the Union. The only evidence of that was that he called
Garcia shortly after being given his card by the project superin-
tendent at the jobsite. Although Garcia was remiss in not re-
turning his call for about 2 weeks, Villarreal was clearly not
being honest when he told Garcia that he couldn’t meet with
him because he was going out of town, and would be out of
town for a while. At the time, he was the sole individual super-
vising the jobsite and the evidence establishes that he was at the
jobsite on a daily basis. As there was no other credible testimo-
ny to establish that Vega would have been discharged absent
his protected conduct, I find that the Respondent violated Sec-
tion 8(a)(1)(3) of the Act by discharging him on September 25.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by in-
terrogating employees about their Union membership and the
union membership of fellow employees.
4. The Respondent violated Section 8(a)(1)(3) of the Act by
discharging John Vega on September 25, 2012.
5. The Respondent did not violate the Act as further alleged
in the amended complaint.
THE REMEDY
The Respondent having discriminatorily discharged Vega, it
must offer him reinstatement and make him whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of a proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). I shall also order the Respondent to file a spe-
cial report with the Social Security Administration allocating
Vega’s backpay to the appropriate calendar quarters and to
compensate him for any adverse income tax consequences of
receiving his backpay in one lump sum. Having found that the
Respondent also engaged in unlawful interrogation, in violation
of Section 8(a)(1) of the Act, I recommend that it be ordered to
cease and desist therefrom, and to post the attached notice to
this effect.
[Recommended Order omitted from publication.]