Laborers��� International Union of North America, Local No. 16, AFL-CIO

National Labor Relations Board - Board Decisions

Apr 30, 2014

360 N.L.R.B. 721 (N.L.R.B. 2014)

LABORERS LOCAL 16 721
360 NLRB No. 77
Laborers’ International Union of North America,
Local No. 16, AFL–CIO and Delores Ornelas.
Case 28–CA–092331
April 30, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On October 30, 2013, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Gen-
eral Counsel filed an exception, a supporting brief, and a
reply brief. The Respondent 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 exception and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We agree with the judge, for the reasons he states, that
the complaint allegation that the Respondent violated
Section 8(a)(1) and (3) of the Act by requiring Charging
Party Delores Ornelas to become a member of the Union
as a condition of her employment must be dismissed as
time-barred. As the judge explained, Machinists Local
1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416–417
(1960), governs the use of time-barred events in situa-
tions where, as here, “conduct occurring within the limi-
tations period can be charged to be an unfair labor prac-
tice only through reliance on an earlier unfair labor prac-
tice.” In that circumstance, the Court held,
use of the earlier unfair labor practice is not merely
“evidentiary,” since it does not simply lay bare a puta-
tive current unfair labor practice. Rather, it serves to
cloak with illegality that which was otherwise lawful.
And where a complaint based upon that earlier event is
time-barred, to permit the event itself to be so used in
effect results in reviving a legally defunct unfair labor
practice.
Id. at 417.
Applying this principle, the judge correctly found that
because the conduct that occurred within the 6-month
limitations period could be found unlawful only by rely-
ing on a defunct unfair labor practice, the complaint alle-
gation was time-barred. As the judge noted, when Or-
nelas was hired in 2007, and on other occasions preced-

1 There are no exceptions to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) of the Act by maintaining and
enforcing an overly broad and discriminatory rule prohibiting employ-
ees from contacting other employees and the International Union about
their terms and conditions of employment, and by discharging employ-
ee Delores Ornelas for engaging in protected concerted activity.
ing the 6-month limitations period, the Respondent told
her that she had to join the Union and pay dues. As the
judge found, however, the General Counsel failed to pre-
sent any evidence that the Respondent maintained or
imposed such a requirement within the 10(b) period.
Thus, as the judge concluded, a current violation could
be made out only by relying on anterior events that pre-
date the 10(b) period, a practice that Bryan Mfg. forbids.
The judge therefore dismissed as time-barred the com-
plaint allegation that the Respondent violated the Act by
requiring Ornelas to become a union member and pay
dues.2
Unlike our dissenting colleague, we agree with the
judge that the record fails to establish that the Respond-
ent maintained a policy requiring union membership dur-
ing the 10(b) period. The fact that Ornelas continued to
pay dues during that time does not show she was re-
quired to do so. Nor does her continued union member-
ship establish a violation, as employees are free to join
and maintain membership in a labor organization that
does not represent them. Further, given the General
Counsel’s failure to present any evidence that the Re-
spondent maintained a policy of requiring union mem-
bership within the limitations period, we would not rely
on the Respondent’s failure to tell Ornelas that her mem-
bership was voluntary as establishing its existence during
the 10(b) period. Doing so would improperly shift the
burden of proving a current unfair labor practice from the
General Counsel to the Respondent.
Finally, the cases relied upon by the General Counsel
and our dissenting colleague are legally and factually
distinguishable, and do not solve the problem created by
the complete absence of evidence that the Respondent
maintained a policy requiring union membership during
the 10(b) period. In Communications Workers Local
4309 (AT&T Midwest), 359 NLRB 1136, 1141 (2013),
the parties stipulated that the respondent maintained the
rule in question during the limitations period; in Control
Services, 305 NLRB 435, 442 (1991), the respondent
conceded that the rule continued in effect; and in Alamo
Cement Co., 277 NLRB 1031, 1037 (1985), the record
showed that the policies at issue were maintained and
enforced during the 6-month period. Here, by contrast,

2 As our dissenting colleague notes, Bryan Mfg. also recognized that
if “occurrences within the six-month limitations period in and of them-
selves may constitute, as a substantive matter, unfair labor practices[,]”
then “earlier events may be utilized to shed light on the true character
of matters occurring within the limitations period; and for that purpose
§10(b) ordinarily does not bar such evidentiary use of anterior events.”
Id. at 416. As the judge found, however, there were no events within
the 10(b) period that would, standing alone, establish a violation. For
this reason, it cannot be said here that time-barred events would merely
elucidate a current unfair labor practice.
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
there is no such evidence. Accordingly, for the reasons
stated by the judge, we uphold his dismissal of the com-
plaint allegation.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER HIROZAWA, dissenting.
Contrary to my colleagues, I would find that the 6-
month limitation period imposed by Section 10(b) does
not bar the complaint allegation that the Respondent vio-
lated Section 8(a)(3) and (1) by requiring employee Or-
nelas to pay union dues to the Respondent as a condition
of her employment. As my colleagues observe, Section
10(b) bars a complaint based upon earlier events where
“conduct occurring within the limitations period can be
charged to be an unfair labor practice only through reli-
ance on an earlier unfair labor practice.” Machinists Lo-
cal 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416–
417 (1960). However, where a timely allegation is be-
fore the Board, “earlier events may be utilized to shed
light on the true character of matters occurring within the
limitations period; and for that purpose [Section] 10(b)
ordinarily does not bar such evidentiary use of anterior
events.” Id. at 416.
The General Counsel alleges that, within the limita-
tions period, Ornelas was required to be a member of the
Union and pay dues. It is undisputed that Ornelas was
not at any time an employee in any collective-bargaining
unit represented by the Respondent or covered by an
agreement lawfully requiring membership. If, therefore,
the Respondent maintained a policy requiring her mem-
bership, that policy was facially unlawful. It is well es-
tablished that the maintenance of a facially unlawful pol-
icy within the 10(b) period is an independent violation of
the Act. See, e.g., Communications Workers Local 4309
(AT&T Midwest), 359 NLRB 1136, 1141 (2013); Control
Services, 305 NLRB 435, 435 fn. 2, 442 (1991); Alamo
Cement Co., 277 NLRB 1031, 1037 (1985).1 The Gen-
eral Counsel’s allegation is therefore timely, because
finding it meritorious does not depend upon finding that
any conduct of the Respondent outside of the limitations
period constituted an earlier unfair labor practice.
Furthermore, the General Counsel has presented evi-
dence that the Respondent maintained a union-
membership requirement within the 10(b) period. The

1 As my colleagues observe, the record in each of those cases estab-
lished that the policy at issue had been maintained during the 10(b)
period, while the question was the lawfulness of each policy. Here, by
contrast, the question is whether the Respondent’s facially unlawful
union-membership policy was maintained during the limitations period.
This factual distinction, however, does not affect the relevance of the
legal standard applied in the cited decisions.
General Counsel showed, my colleagues have found, and
I agree, that the Respondent imposed a requirement that
Ornelas become a member of the Union and pay dues.
That initial imposition of the requirement occurred out-
side of the 10(b) period, and therefore cannot be found to
constitute a violation in and of itself. However, the evi-
dence establishing the initial imposition of the require-
ment may be considered under Machinists Local 1424
(Bryan Mfg. Co.) v. NLRB, above, and well-established
Board precedent, see, e.g., Regency House of Walling-
ford, Inc., 356 NLRB 563, 567 fn. 14 (2011), to elucidate
subsequent events.2
Ornelas continued to pay dues until her discharge, the
Respondent continued to accept them, and Ornelas was
never told that her membership was voluntary. These
facts, considered in the light shed by the undisputed fact
that the Respondent had previously required Ornelas to
become a member and pay dues, support an inference
that the Respondent maintained its policy requiring union
membership throughout the 10(b) period. Accordingly, I
would reverse the judge’s decision and find that the Re-
spondent violated the Act.
Eva Shih, Esq., for the Acting General Counsel.
John L. Hollis, Esq. (John L. Hollis, PA), of Albuquerque, New
Mexico, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard
this case in Albuquerque, New Mexico, on April 23, 2013.
Delores Ornelas, a former employee of the Respondent labor
organization, filed the original charge on October 30, 2012.1
Thereafter, she filed an amended charge on November 7, and a
second amended charge on December 21. On December 31,
the Regional Director for Region 28 of the National Labor Re-
lations Board (NLRB or the Board) issued a complaint and
notice of hearing alleging that Laborers’ International Union of
North America, Local 16, AFL–CIO (Respondent or Local 16),
violated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act).2 The complaint alleges that Respondent inde-

2 My colleagues suggest that my analysis improperly relieves the
General Counsel of his burden of proof. But given the General Coun-
sel’s showing that the Respondent imposed a union-membership re-
quirement, it would not improperly shift the burden, either of produc-
tion or of persuasion, for the Board to find that the Respondent never
rescinded that requirement.
1 All dates refer to the 2012 calendar year, unless otherwise shown.
2 Under Sec. 8(a)(1) it is an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7.” Sec. 7 provides in pertinent part employees
“have the right to self-organization, to form, join or assist labor organi-
zations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection” as well as the
right to refrain from any of these activities except as otherwise provid-
ed under the Act. It is an unfair labor practice under Sec. 8(a)(3) for an
LABORERS LOCAL 16 723
pendently violated Section 8(a)(1) by maintaining and enforc-
ing an overly-broad and discriminatory rule prohibiting em-
ployees from contacting other employees and the International
Union about matters pertaining to their terms and conditions of
employment, and by discharging Ornelas for engaging in pro-
tected concerted activities. The complaint also alleges that
Respondent violated Section 8(a)(1) and (3) of the Act by re-
quiring Ornelas to become a member of Local 16 as a condition
of her employment.
The Respondent filed a timely answer denying the substan-
tive allegations of the complaint and alleging affirmatively that
it terminated Ornelas for cause. At the hearing, Respondent
further asserted that the mandatory union membership allega-
tion contained in the complaint was time-barred by Section
10(b) of the Act.3
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after carefully considering the
briefs filed by the Acting General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an unincorporated association with an office
and place of business in Albuquerque, New Mexico, represents
employees in collective bargaining with employers.
At all material times Respondent, has been chartered by and
has been an integral part of a multistate labor organization,
Laborers’ International Union of North America, AFL–CIO
(LIUNA), that maintains its national headquarters in Washing-
ton, DC. In conducting its operations during the 12-month
period ending October 30, 2012, Respondent collected and
received dues and initiation fees in excess of $500,000, and
remitted from its facility in Albuquerque, to LIUNA per capita
taxes in excess of $50,000. Based on the foregoing, I find Re-
spondent has been an employer at all material times engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Respondent also has been a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Local 16 represents construction laborers and custodians
throughout the State of New Mexico for collective-bargaining
purposes. In addition to its principal office located at 1030 San
Pedro Avenue, N.E. in Albuquerque, Local 16 maintains satel-
lite offices in Espanola, Farmington, and Las Cruces, New
Mexico.

employer to discriminate against an employee “in regard to hire or
tenure of employment or any term or condition of employment to en-
courage or discourage membership in any labor organization.” Sec. 10
of the Act empowers the Board “to prevent any person from engaging
in any unfair labor practice affecting commerce.”
3 The relevant portion of Sec. 10(b) provides that “no complaint
shall issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such charge is made.”
4 Respondent’s unopposed motion to correct the transcript is grant-
ed.
Juan Cordova took office as Local 16’s secretary-treasurer
and business manager on June 8 following his election in May
2012. In that capacity he serves as Local 16’s chief executive
officer. He oversees the work of Local 16’s six business
agents, its office manager, and its administrative assistant or
secretary. During the same election, Jose (Joey) Atencio, be-
came Local 16’s president. It appears that Atencio almost sim-
ultaneously became a Local 16 business agent working from
the union’s Albuquerque office. The other two business agents,
Louie Moya (Atencio’s predecessor as the local’s president)
and Darrell Deaguero, also work out of the Albuquerque office.
The union’s business agents and administrative employees are
unrepresented.
Local 16’s Albuquerque office building sits in the middle of
the commercial lot on San Pedro Avenue N.E. There are park-
ing areas on all four sides of the building for use without charge
by the union’s employees, members, and guests. The second
story of the union’s office building overhangs the first floor in a
manner that provides a single row of covered parking spaces
immediately adjacent to the north and south side of the build-
ing.5
The principal issue in this case concerns the August 9 termi-
nation of Delores Ornelas, the local’s sole secretary or adminis-
trative employee. The Acting General Counsel contends that
Cordova terminated Ornelas for her concerted protected activi-
ties. Local 16 contends he terminated her for misconduct grow-
ing out of a confrontation she initiated with Atencio on August
8 after he asked that her car be moved to another location in the
union’s parking lot. Two lesser issues concern the alleged re-
quirement that all of Local 16’s staff employees become and
remain members in good standing of that labor organization
and an alleged in-house rule limiting the staff employees’ right
to engage in Section 7 activities.
B. Relevant Facts
Ornelas began working at Local 16 in October 2007. When
she learned of an opening there for an administrative assistant,
she submitted her resume to Jennifer Nieto, the office manager
and direct supervisor of the union’s secretarial staff. There is
no evidence that Ornelas ever worked for a labor organization
before, ever belonged to a labor organization, ever had any
familiarity with the purposes or work of labor organizations, or
otherwise knew about or ever heard of the arcane laws and
rules governing the limitations on employers, whether labor
organizations or otherwise, governing the employment of

5 As the record evidence failed to describe the parking setup in a
manner that would allow informed findings of fact on this important
issue, I have viewed the parking configuration shown in the satellite
view of Google maps at 1030 San Pedro Avenue, N.E., Albuquerque,
New Mexico, which shows Local 16’s office building. Pursuant to
Rule 201 of the Federal Rules of Evidence, I take administrative notice
of the parking configuration shown there for purposes of making my
findings here about the parking setup at that site. As no party had prior
notice of my intention to administratively notice this adjudicative fact,
and as the Board’s Rules provide for the contemporaneous transfer of
jurisdiction over this case from me to the Board upon the issuance of
this decision, the parties may exercise their right to be heard on this
question of official notice as provided in FRE Rule 201(e) by filing a
specific exception with the Board.
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
workers. On the contrary, from my observation of Ornelas at
the hearing, I have concluded that she was, at the time of her
hire, a young woman with clerical skills in need of work and
that she almost certainly did as she was told by her potential
employer.
Shortly after a personal interview, Nieto offered Ornelas a
job with the local. During the hiring process Nieto faxed the
typical employment documents on two or three separate occa-
sions that Ornelas completed and returned them. One docu-
ment, a letter-like form on Respondent’s letterhead and ad-
dressed to Local 16 in a hand obviously different than Ornelas’
writing at the bottom, authorized Local 16 to deduct from her
wages $26 during the first pay period each month for her
“monthly membership dues fee.” It also authorized Local 16 to
deduct $25 per pay check until a $100 “Initiation Fee or Read-
mission fee” had been paid. (GC Exh. 2.) The form’s final
paragraph goes on to state:
You (meaning Local 16) are directed to remit the amount de-
ducted on the monthly Employer Reporting Form submitted
to Southwest Multi-Craft Health and Welfare Fund on or be-
fore the 15th day of the calendar month following for which
said deductions were made.6
Although characterized as “dues,” the clear wording on this
form and Respondent’s acknowledgment in its brief shows that
this exaction amounted to a requirement that the employee pay
for her/his own pension and health care benefits that other doc-
uments describe as benefits provided by Local 16.
Ornelas called Nieto after receiving this form seeking an ex-
planation for her need to complete it and pay the specified dues
and initiation fee. Nieto told her she needed to become a union
member and pay the dues by way of the payroll deduction in
order to start work. Ornelas complied with the instruction giv-
en.
In November 2008, Ornelas signed another dues-deduction
document entitled “Voluntary Dues Deduction Authorization.”
This authorization, also printed on a Local 16 letterhead and
countersigned by the then Business Manager Eddie Archuleta,
allowed her employer to deduct 4 percent from her gross wages
each pay period “for working dues and my monthly dues.” In
addition it authorized deduction of three cents per hour for a
“Build New Mexico” fund and five cents per hour for a so-
called “LECET” fund. This form further authorized increased
deductions to cover “any future increases.” The final sentence
of the form states: “This authorization is voluntarily given and

6 The Southwest Multi-Craft Health and Welfare Fund is a trust
fund that administers the pension, and the health and welfare benefit
program established under Local 16’s collective-bargaining agreements
with area contractors and other employers who employ the workers the
union represents. The employers make monthly payments into this
trust to cover the benefits provided to the workers they employ. The
employers also withhold and remit to Local 16’s general fund separate
amounts to cover their employees’ membership dues and fees. Pur-
portedly, some unexplained special arrangement exists that permit the
union’s own employees to also participate in this benefit trust estab-
lished by the collective-bargaining agreement but the cost for that par-
ticipation apparently comes from the “dues” deducted from the union’s
employees pay that are then transmitted to the trust fund.
may be revoked in writing by me at any time, and is not de-
pendent upon my being a member of Laborers’ Local Union
#16.” At the same time, Ornelas was given another so-called
voluntary authorization form for the “N.M. Laborers’ Political
Education Fund” that she declined to sign. No evidence shows
that Ornelas suffered any reprisal for refusing to authorize a
payroll deduction for the political activity fund. According to
Ornelas’ uncontradicted testimony, she was told on several
occasions over the years, particularly by Business Agent Moya,
at a time when he was also Local 16’s president, that she “had”
to pay dues. Respondent’s brief summarized the sum total of
Ornelas’ dues obligations as follows:
She paid monthly membership dues of $26.00 per month. In
addition to her monthly dues, working dues of 4% of her
gross wages were deducted and paid to Respondent. Dues are
paid into the general fund, and from that fund, contributions
are made in behalf of Ornelas and other employees of Re-
spondent for health insurance and pensions.
At the time of her termination in August 2012, Ornelas
earned $14.40 per hour. During the spring of 2012, Ornelas
learned from Moya, still the union’s president at the time, that
the pay freeze in effect for all Local 16 employees for the pre-
vious 3 years would continue for yet another year. Ornelas
protested to Moya saying that she did not see why she was
paying dues while her pay had remained static for such a long
time. Then, as on other occasions, Moya told Ornelas that she
“had to pay dues.” Later, presumably after the union election
that spring, Ornelas spoke to Nieto about a pay increase and
Nieto advised her to hold off until after Cordova took office.
In about mid-July Ornelas spoke to Cordova about a pay
raise. He told her he would look into it and get back to her. On
another occasion she pressed him about the pay matter but he
told her that he had not yet had an opportunity to look into it.
On August 7 Ornelas and her supervisor, Nieto, met with
Cordova to discuss her wage increase request. Cordova told
Ornelas that he would grant her a 4 percent increase (effective-
ly to $15 per hour) and then take another look at her pay in 6
months or a year to see if he could give her an additional 4
percent. Apparently not satisfied, Ornelas presented a docu-
ment to Cordova that she obtained from an internet site show-
ing workers in her category earning $18 to $19 per hour.
Seemingly the meeting ended in a stalemate. In a handwritten
summary she made of this meeting and other events that fol-
lowed, Ornelas acknowledged that she “was turned down about
the raise I was asking for” but had been offered an increase to
$15 per hour. At the end of the meeting, Cordova told Ornelas
to “think about it.”
Ornelas’ pay matter largely became moot when Cordova
terminated her 2 days later for a conflict she had on August 8
with Jose Atencio, the union’s president. That issue began
when she parked her car that morning in a covered parking
space on the north side of the Union’s building because of the
heat.7 Although she had parked there before, there appears to

7 Ornelas had parked in the covered area before and denied know-
ing, as Respondent’s witnesses assert, that the covered parking area on
the north side of the building was reserved for business agents. In my
LABORERS LOCAL 16 725
have been an understanding in the office that the covered spac-
es on that side of the building were reserved for the business
agents while the administrative personnel, namely, Nieto and
Ornelas, were relegated to parking in uncovered spaces to the
north or any of the spaces to the south.
After Ornelas returned from lunch that day, she overheard
Atencio, tell Nieto, “You need to have your girl move her car.
She cannot park down there,” apparently meaning that Ornelas
could not park where she had parked that day. Nieto promptly
went to Ornelas’ cubicle to tell her of Atencio’s request, com-
menting, according to Ornelas, “Wow, he is pissed.” The two
commiserated briefly about Atencio’s disrespectful “girl” refer-
ence but after Nieto returned to her office, Ornelas continued
on with her regular work.
A few minutes later, Darrell Deaguero, another business
agent Ornelas characterized as a “buddy” of Atencio’s, ap-
proached Ornelas directly and requested that she move her car.
After finishing what she was doing and making a phone call,
Ornelas finally went to move her car.
On her way back to the office after moving her car, Ornelas
came upon Atencio standing in front of the building talking
with a contractor on his cell phone while smoking a cigarette.
Ornelas admitted that she spoke to Atencio but the two provid-
ed dramatically different accounts of the words and the tone
used. Ornelas claimed that she said, “I moved my car. You
don’t have to cry” as she passed Atencio. She said Atencio
asked her to repeat what she had just said and she then told
him, “I moved my car. You don’t need to have a cry; you could
have just come to me.” Atencio claimed that Ornelas ap-
proached within 2 or 3 feet of him and began yelling at him,
“There, I moved my f—king car. You can stop your f—king
crying. If you have got something to say to me, you come to
me. Don’t be going to Jennifer.” Based on other record evi-
dence showing that Ornelas harbored animosity toward Atencio
before this incident and Atencio’s immediate complaint to Cor-
dova over the matter, I credit Atencio’s account indicating that
Ornelas became irate and aggressive over the parking issue. At
the hearing, Ornelas conveyed the impression that she loathed
Atencio.
Atencio ended his call and returned to the Local 16 office ar-
ea. He promptly reported the incident to Cordova, saying that
he had just been “verbally assaulted” by Ornelas yelling profan-
ities at him while he had been minding his own business out in
front of the building.
With Atencio still present in his office, Cordova immediately
summoned Ornelas to speak with her about the incident report-
ed by Atencio.
During this meeting, Cordova told Ornelas that he thought
she had been very unprofessional and that he did not like the
way she had “confronted” Atencio and told her, “You know,
we need to carry ourselves professionally here . . . we need to
be a team. We need to have respect for each other here.” Cor-
dova said Ornelas admitted that she had “verbally assaulted”
Atencio and apologized for acting unprofessionally. However,
Ornelas then charged that Atencio was a sexist and complained

judgment, whether the covered parking was reserved or not is not rele-
vant to what ultimately occurred.
that the business agents generally received preferential treat-
ment.8 Cordova said he concluded the meeting by telling Or-
nelas that he would get back to her because he wanted some
time to think about the “assault” matter after first dealing with
the immediate conflict.
According to Ornelas, the whole parking issue was resolved
and Cordova told her that “if ever anything happened in the
future . . . with any other employees” she should follow the
“chain of command” and come to him for any issues she had
with another employee. After that, Ornelas said her pay issue
came up again and the discussion of this topic concluded with
Cordova offering to increase her pay to $15 per hour. During a
611(c) examination, Atencio answered affirmatively to the
counsel for the Acting General Counsel’s leading question
during her 611(c) examination asking whether “wages” were
discussed during the meeting but that issue was never pursued
further with him by either side. Cordova denied discussing
Ornelas’ wage issue with her at that time. In fact, Ornelas’ own
written note concerning the chronology of the pay matter which
acknowledged that the $15-per-hour pay adjustment offer had
been made on August 7 states that on August 8 she brought up
the pay issue by asking “if he could increase (it) just to a little
bit more.” In view of her prior written account of the pay issue
chronology, I do not credit Ornelas’ effort during her hearing
testimony to imply that the unfortunate exchange with Atencio
on August 8 was fully resolved at the meeting with Cordova
and that everyone then moved on to other matters, including her
pay increase.
Later on the afternoon of August 8 Ornelas returned to her
car in the parking lot and attempted to call International Repre-
sentative Feher in Arizona to speak with him about her pay
issue and her coverage under the collective-bargaining agree-
ment between Local 16 and area contractors covering a unit of
construction laborers.9 She had never called Feher before.
Ornelas claims that she left a message asking that he call her
but she did not receive a return call from him that day. Feher
denied that he received a telephone voice message from Or-
nelas on August 8 and his telephone record for that period does
not reflect a call to or from Ornelas’ cell phone or any other
number in the 505 area code that day.10 Ornelas’ phone record
shows that she, in fact, called Feher’s work number twice and
that the first of the calls lasted approximately 1 minute and 26
seconds, suggesting that a brief message may have been left.
Ornelas asserted that she almost immediately began fearing
for her job after she placed the two calls to Feher and that she
told Nieto about what she had done when she returned to the
office. Nieto denied that she knew of any attempt by Ornelas to
speak with Feher until the following day after Ornelas had been
discharged. Cordova also denied that he knew of any attempt

8 Ornelas claimed that Atencio then “jumped into” the exchange
saying that he had nothing personal against Ornelas but the practice at
the local had always been that the business agents parked on the north
side of the building and the clerical staff parked on the south side.
9 According to Ornelas, she asserted during the August 8 meeting
with Cordova and Atencio that she argued that she should be paid the
contractual pay rate for jobsite construction laborers which was $16.02
per hour at that time.
10 The 505 area code encompasses the entire State of New Mexico.
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by Ornelas to contact Feher before he terminated her the fol-
lowing day. Cordova said any effort by Ornelas to speak with
Feher did not come to his attention until 3 or 4 weeks after her
termination. Cordova also denied Ornelas’ claims that Local
16 prohibits employees from speaking to union officials at the
regional or international level. To the contrary, he asserted that
both the local and the international maintain an open door poli-
cy to encourage employees to speak to the union’s officials
about any matters of concern.
At the start of the workday on August 9, Cordova summoned
Ornelas, Office Manager Nieto, and Business Agent Moya to
his office. At that time, he summarily discharged Ornelas for
“workplace violence and insubordination.” He rebuffed Or-
nelas’ attempt to discuss the matter and directed Nieto to assist
her in clearing out her personal property from her desk and to
then escort her out of the building.
C. Analysis and Conclusions
1. The restrictive rules allegation
Complaint paragraph 4(b) alleges that Respondent has main-
tained and enforced an overly-broad and discriminatory rule
prohibiting employees from contacting other employees and the
International Union about their terms and conditions of em-
ployment.
To support this allegation, the Acting General Counsel relies
on Ornelas’ claim that Moya and Deaguero told her on several
occasions in the past that the local always found a pretext to
fire secretaries who contacted the international union coupled
with Cordova’s statement to her at the August 8 meeting that
she should come to him if she ever had a problem with another
employee of the local. The Acting General Counsel argues that
these combined prohibitions amounted to a rule designed to
chill the employees exercise of Section 7 rights.
Workplace rules that chill employee Section 7 activities vio-
late Section 8)(a)(1). Lafayette Park Hotel, 326 NLRB 824,
825 (1998). Under the analytical framework in Lutheran Her-
itage Village-Livonia, 343 NLRB 646 (2004), rules that explic-
itly restrict Section 7 activities may be found unlawful on their
face. But where a rule does not explicitly restrict Section 7
activity, the General Counsel must establish by a preponder-
ance of the evidence that: (1) employees would reasonably
construe the rule to prohibit Section 7 activity; (2) the employer
adopted the rule in response to union activity; or (3) the em-
ployer applied a rule to restrict employee Section 7 activity. Id.
at 647. In assessing the lawfulness of a rule, fact finders must
give the disputed rule a reasonable reading, refrain from read-
ing particular phrases in isolation, and avoid improper pre-
sumptions about interference with employee rights. Id. at 646.
Here, Cordova denied that the local maintained any rule pro-
hibiting employees from contacting the international union
about their employment issues. I credit his assertion. Ornelas’
claims that she has been led to believe over the years that the
local fired secretaries for contacting the international officials is
only supported by her own highly self-serving testimony. I
have concluded this testimony amounts to an invention on her
part designed primarily to support her allegation that she was
unlawfully discharged. She even made a nearly identical asser-
tion in an effort to explain away an incidental acknowledgment
that she never attended a meeting of the union to which she
belonged for several years even though her own job description
includes a responsibility for preparing a draft of the minutes of
such meetings. I find her claims unworthy of belief, particular-
ly where, as here, she admitted that she had voted in the union’s
elections without any known recrimination. Simply put, there
is no evidence of any type that lends a scintilla of support for
her claims about secretaries being summarily dispatched to the
unemployment line for protected activities of this type. Given
the gravamen of this allegation, one could reasonably anticipate
a name or two of one of these unfortunate, former Local 16
secretaries would have come to her attention over the years but
none were produced at this hearing. Other than Ornelas, the
Acting General Counsel advanced not a single name of another
person who might have suffered the kind of recrimination sug-
gested by Ornelas’ testimony. Hence, I do not credit her claim
that Local 16 routinely discharges its employees because they
seek assistance from the international union officials about
workplace issues or because they attend membership meetings.
But to support this allegation otherwise lacking any credible
support whatsoever, the Acting General Counsel advances the
missing witness (adverse inference) rule in an effort to buttress
Ornelas’ self-serving assertions that Local 16 dismissed mem-
bers of its secretarial staff on a trumped up basis because they
discussed workplace issues with a staff member of the interna-
tional union or dared to attend a union meeting even though
their job description might require that they do so. The Acting
General Counsel asserts that I should infer support for Ornelas’
claims from Respondent’s failure to call Moya and Deaguero to
deny her claims that Local 16 routinely dismissed secretaries
because they complained to international officials or attended
union meetings, or ever said as much.
I decline the Acting General Counsel’s invitation to draw
such an inference. In my judgment, it would be inappropriate
to do so in this situation. In the past decade or so some courts
have cautioned against these types of irrational applications of
the missing witness rule. Based on my decades of trial work, I
find these criticisms have a degree of validity that should not be
routinely ignored. The Seventh Circuit in particular has de-
clined to approve the use of the adverse inference rule to fill the
“gaps in the record” when used to help prove a matter for
which the party seeking the inference has the burden of proof.
See NLRB v. Louis A. Weiss Memorial Hospital, 172 F.3d. 432,
446 (7th Cir. 1999). See also Multi-Ad Services, Inc. v. NLRB,
255 F.3d 363 (7th Cir. 2001); Vulcan Basement Waterproofing
v. NLRB, 219 F.3d 677 (7th Cir. 2000); and Howard v. Wal-
Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998).
In my judgment, using an adverse inference based on Local
16’s failure to call Moya and Deaguero to deny the statements
Ornelas attributed to them over the years would not serve the
interest of justice. It is known that Atencio displaced Moya as
the union’s president in the last election but no other detail is
known. The record does suggest Ornelas’ affinity for Moya
and her strong distaste for Atencio. For all that is known, Mo-
ya could well have been an adversary of Atencio’s in the elec-
tion and harbored some substantial animosity toward him for
having lost his union office to him. In those circumstances, it
could well be that Moya would be predisposed to do what he
LABORERS LOCAL 16 727
could to get even with Atencio and the current union hierarchy
even if it meant being untruthful about the union’s past practic-
es of ridding itself of clerical employees who spoke to interna-
tional officials about their working conditions. That being the
case, any inference about his absence would be entirely unwar-
ranted.
Moreover, there is no evidence that Deaguero was ever any-
thing other than a nonsupervisory business agent at the local
union. In that circumstance, Local 16 would have no obligation
to produce him in a case such as this.
In short, I have concluded that there is no credible evidence
to support a finding that the local maintained a policy or prac-
tice of terminating its secretaries for contacting international
officials about their working conditions. Additionally, I find
that Cordova’s request on August 8 that Ornelas speak to him if
she ever had a problem with another employee was little more
than a reaction to the explosive exchange that occurred that
particular afternoon over the parking spaces. Regardless, I find
that it does not explicitly restrict Section 7 activity nor does it
run afoul of the alternative tests the Board articulated in Lu-
theran Heritage Village case in those instances where a work-
place rule does not explicitly restrict Section 7 activity. For
these reasons, I recommend dismissal of this allegation.
2. The mandatory union membership
requirement allegation
Complaint paragraphs 5(a) and (b), as amended, alleges that
Respondent violated Section 8(a)(1) and (3) by requiring Or-
nelas to become a member of Local 16, in its capacity as a la-
bor organization, as a condition of her employment with Re-
spondent. The evidence clearly proves that to be the case. The
evidence showing that Nieto said as much to Ornelas during
this employee’s preemployment paperwork process is worthy
of credit.
Respondent advances two defenses for this allegation. First,
Respondent argues that Ornelas’ voluntarily undertook her
membership obligations, if not in 2007, then clearly in 2008.
Second, Respondent asserts that the 6-month limitations period
in the Act bars this allegation. Although I would find that the
first defense lacks merit, I find it unnecessary to address that
issue because I find Respondent’s 10(b) defense has merit.
In Respondent’s opening statement at the hearing and in its
brief, Respondent asserted that this allegation was barred by
Section 10(b) based on the rationale in Machinist Local 1424
(Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960) (hereafter Bryan
Mfg. case). At the hearing, the Acting General Counsel con-
ceded that this situation arose outside the 10(b) period but as-
serted, in effect, that it amounted to a “continuing violation”
described by Justice Harlan writing for the majority in the Bry-
an Mfg. case. I disagree with the Acting General Counsel’s
position. In my judgment, his position can only be sustained by
turning the Act on its head and finding that it is unlawful on its
face for an employee to join a union, maintain membership in a
union, and pay the organization’s ordinary dues and fees.
In my view, the Acting General Counsel argument fails to
recognize critical distinctions made by the Supreme Court in
Bryan Mfg. The parties in that case entered into a collective-
bargaining agreement that required the employer to recognize
the union as the exclusive bargaining agent (the exclusive
recognition provision) and further required all unit employees
to become and remain members of the union within 45 days
after the execution of the agreement or, in the case of new
hires, their date of hire (the union-security provision). The
union did not represent a majority of the unit employees when
the agreement became effective.
A year later, an individual employee charged that both the
employer and the union engaged in unfair labor practices based
on existing Board law by enforcing an agreement containing
the exclusive recognition provision and the union security pro-
vision at a time when the union did not represent a majority of
the unit employees. Throughout the proceeding, the employer
and the union argued that the unfair labor practice allegations
should be dismissed based on the Act’s 10(b) limitations peri-
od. Both the Board and the court of appeals rejected the 10(b)
defense and found the employer and the union violated the Act
by enforcing both provisions during the current 10(b) period
because their agreement was unlawful from the outset.
The Supreme Court granted certiorari and reversed. Justice
Harlan’s opinion articulated the following rationale applicable
to cases such as this where a party invokes Section 10(b) as a
defense to ongoing conduct that began outside the 6-month
period:
It is doubtless true that §10(b) does not prevent all use of evi-
dence relating to events transpiring more than six months be-
fore the filing and service of an unfair labor practice charge.
However, in applying rules of evidence as to the admissibility
of past events, due regard for the purposes of §10(b) requires
that two different kinds of situations be distinguished. The
first is one where occurrences within the six-month limita-
tions period in and of themselves may constitute, as a substan-
tive matter, unfair labor practices. There, earlier events may
be utilized to shed light on the true character of matters occur-
ring within the limitations period; and for that purpose §10(b)
ordinarily does not bar such evidentiary use of anterior events.
The second situation is that where conduct occurring within
the limitations period can be charged to be an unfair labor
practice only through reliance on an earlier unfair labor prac-
tice. There the use of the earlier unfair labor practice is not
merely “evidentiary,” since it does not simply lay bare a puta-
tive current unfair labor practice. Rather, it serves to cloak
with illegality that which was otherwise lawful. And where a
complaint based upon that earlier event is time-barred, to
permit the event itself to be so used in effect results in reviv-
ing a legally defunct unfair labor practice.
362 U.S. 416–417.
Here, a violation can be made out only by reliance on “ante-
rior events” (meaning those outside the 10(b) period) to come
up with the evidence that Nieto told Ornelas that she had to join
the union and, in effect, pay certain fees and dues in order to
start work at Local 16. Without that stale evidence, the fact
that Ornelas maintained membership in Local 16 and paid dues
during a 10(b) period is, to paraphrase Justice Harlan, not suffi-
cient in and of itself to “constitute, as a substantive matter, (an)
unfair labor practice.” For this reason, I recommend dismissal
of complaint paragraphs 5(a) and (b).
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Ornelas’ termination
Together, the Acting General Counsel’s complaint and brief
advances the theory that Ornelas engaged in protected concert-
ed activity on August 8 when she attempted to reach Interna-
tional Representative Feher—in violation of Respondent’s
overly broad and discriminatory rule prohibiting employees
from contacting other employees and the International Union
about issues they had with Respondent’s terms and conditions
of employment—in order to speak to him about her efforts to
obtain a wage increase and her coverage under the construction
laborers collective-bargaining agreement. The complaint and
the Acting General Counsel’s brief also charges that Respond-
ent violated Section 8(a)(1) on August 9 by discharging Ornelas
for violating that unlawful rule. Respondent contends that it
discharged Ornelas for cause, namely, her angry verbal attack
on Local 16’s president on August 8 over the parking issue.
When an employer proffers a facially legitimate reason for
taking adverse action against an employee but the motive is
disputed, the Board employs a causation test it first announced
in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
That test applies here.
Wright Line requires the Acting General Counsel to meet an
initial burden of persuading the tribunal that the employee’s
protected activity constituted a substantial or motivating factor
for the employer’s adverse action against the employee. If the
Acting General Counsel meets that burden, then the burden of
persuasion shifts to the employer to prove as an affirmative
defense that it would have taken the same action even if the
employee had not engaged in protected activity. Manno Elec-
tric, 321 NLRB 278, 280 fn. 12 (1996).
To sustain his initial Wright Line burden, the Acting General
Counsel must show by either direct or circumstantial evidence,
or a combination thereof that: (1) the employee was engaged in
protected activity; (2) the employer was aware of the activity;
and (3) the activity was a substantial or motivating reason for
the employer’s action. Naomi Knitting Plant, 328 NLRB 1279,
1281 (1999), citing FPC Moldings, Inc. v. NLRB, 64 F.3d 935,
942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994).
I have concluded that the Acting General Counsel failed to
sustain his initial burden in Ornelas’ case and, hence, the bur-
den of persuasion never shifted to Respondent. As structured,
the complaint invokes the principle found in cases such as Wil-
liamette Industries, 306 NLRB 1010 fn. 2 (1992), that an em-
ployer violates the Act by taking adverse action against an em-
ployee for violating an unlawful rule. That theory fails here
because of my conclusion above that Respondent does not
maintain such an overly broad and discriminatory rule that
prohibits its employees from contacting other employees and
the International Union about issues they have with Respond-
ent’s terms and conditions of employment. With that conclu-
sion, the Acting General Counsel’s burden in this case was
reduced to proving the traditional elements of an unlawful ad-
verse action. As noted, the Acting General Counsel failed to
meet that burden.
At the outset, I am unable to conclude that Ornelas engaged
in any concerted activity protected by the Act. For her activity
to be concerted within the meaning of the Act, it must be shown
that Ornelas was acting with or on the authority of other em-
ployees, and not solely on her own behalf, or that she was en-
gaged in activity seeking to initiate, or to induce or prepare for,
group action, or to bring group complaints to management.
Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984),
revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 971 (1985), decision on remand Meyers
Industries (Meyers II), 281 NLRB 882, 885 (1986), enfd. 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
I have concluded that the Acting General Counsel failed to
show that Ornelas engaged in any activity beyond the pursuit of
a pay increase solely for herself. Such activity does not meet
the concerted activity tests addressed in either Meyers I or II.
To plug this gap, the Acting General Counsel’s brief seizes
on Ornelas’ misapprehension that Local 16 employees were
covered by the New Mexico construction laborers collective-
bargaining agreement. On this point, the Acting General Coun-
sel’s brief states:
Further, there is no question that Ornelas’ call to Feher, which
was in part for the purpose of determining whether Respond-
ent’s collective-bargaining agreement covered secretaries, in-
cluding herself, is protected under the Act. Union Carbide
Corp., 1999 WL 33454762 (1999) (employees pursuing
rights under a collective bargaining agreement are engaging in
conduct protected by the Act even if they are incorrect in their
interpretation of the contract).
The Union Carbide case relies on the seminal principle from
the City Disposal case.11 Its use here in support of an argument
that Ornelas engaged in concerted activity is misplaced.
The Union Carbide case12 is factually distinguishable from
the situation here. In that case, the employee had been previ-
ously employed in the unit covered by a collective-bargaining
agreement. A provision in that agreement required all new
hires to serve a 120-day probationary period and provided that
new employees with prior service had an inchoate right to
bridge their prior service with their new service. The ALJ and
the Board concluded that the employer discharged the employ-
ee during his new probationary period for his vigorous assertion
of rights under the bridge provision of the collective-bargaining
agreement.
At best, Ornelas mistakenly assumed that she was covered
under a collective-bargaining agreement and intended to seek
confirmation of that fact by calling Feher. The difference be-
tween the two situations is significant as the City Disposal line
of cases are limited to those situations where it could be said
that the employee claiming to have engaged in concerted activi-
ty had been a part of the group action that produced the collec-
tive-bargaining agreement in the first place. Although Ornelas

11 NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984) (hold-
ing that an individual employee’s reasonable and honest pursuit of
her/his own rights under a collective-bargaining agreement is concerted
activity within the meaning of Sec. 7 because the individual’s effort
constitutes an extension of the concerted action that produced the
agreement in the first place.
12 The citation in the Acting General Counsel’s brief is to the ALJ’s
bench decision which the Board affirmed. See Union Carbide Corp.,
331 NLRB 356 (2000).
LABORERS LOCAL 16 729
was employed by Local 16, she was never a member of the
construction laborers unit or any other unit of employees repre-
sented by Local 16 and, hence, her conduct would not have
been an “extension” of some earlier group activity.
In addition, I credit Nieto’s assertion that she never learned
that Ornelas placed a call to Feher until after she had been dis-
charged on August 9. Consequently, I find that the Acting
General Counsel failed to prove that Respondent’s hierarchy
knew that Ornelas had attempted to contact Feher in any fash-
ion prior to her discharge.
But even if I credited Ornelas’ testimony that she told Nieto
about her effort to call Feher on August 8, I would be reluctant
to conclude that this knowledge could be imputed to Cordova
by the time he discharged Ornelas the following morning. Alt-
hough the Board ordinarily imputes a supervisor’s knowledge
of an employee’s protected activity to the employer, (see e.g.
Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82 (1983)), an
inference of knowledge is not always automatic. Kimball Tire
Co., 240 NLRB 343, 344 (1979). Where, as here, Nieto credi-
bly testified that Cordova did not involve her at all in the deci-
sion to discharge Ornelas, I find an inference that Cordova
knew about Ornelas’ unsuccessful calls to Feher on August 8
would be unreasonable in the absence of evidence that he ac-
quired such knowledge by some other means.
Finally, the only evidence that Respondent harbored any an-
imosity toward employees who took their workplace issues to
international officials comes from Ornelas herself. I do not find
her self-serving assertions on this point sufficiently reliable to
credit.
For these reasons, I find that the Acting General Counsel has
failed to prove any of the essential elements of a discharge
case. Hence, I cannot find that the Acting General Counsel has
met his initial Wright Line burden with respect to Ornelas’
discharge. Accordingly, I will recommend dismissal of this
allegation.
CONCLUSION OF LAW
The Acting General Counsel failed to prove the allegations
contained in the complaint issued in this matter on December
31, 2012, and amended on April 5, 2013, by a preponderance of
the credible evidence.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The complaint is dismissed in its entirety.

13 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.